Exploring the Role of Elder Mediation in the Prevention of Elder Abuse

Section 1: What is elder mediation?

B. Mediation Process Models

The literature and feedback from experienced practitioners in the field indicate that there appears to be some diversity in the process models that elder mediators adopt. Most trained elder mediators and users of mediation services tend to agree that the actual competencies of the elder mediator, with respect to sensitivity and knowledge of aging, including elder abuse and neglect, is crucial to the orchestration of any model of mediation. All models work in ensuring that participation is voluntary with informed consent, self-determination and confidentiality. Elder mediation also requires the development of a communication process and commitment to the process, ensuring that issues are identified and clarified. It is also important that there be some preliminary assessment to determine whether elder mediation is appropriate. Once the decision has been made that the case is appropriate for mediation, the mediation can be structured in a way to accommodate and protect all participants—especially if there is any hint of power imbalance. For example, it is not uncommon to include an advocate for the older person in the mediation sessions.

Some experts suggest that mediation models cannot be combined (Bush and Folger, 2005) while other experts suggest the opposite (Kardasis, 2010). What is important is that mediators know what model they are practicing, and why it is best suited for the particular situation and participants involved (McCann-Beranger, 2005). It is important not to predetermine what process will work before assessing a case. Kardasis (2010) maintains that mediators and other alternative dispute resolution professionals have many processes from which to draw upon in their practice. There appears to be no research that suggests that one model is ultimately any better than another. Regardless of the model used, all conflict involves power exchanges of some sort and the goal is to encourage constructive, reciprocal, and sustainable patterns of power exchange (Mayer, 2009) that lead to mutually acceptable solutions.

The following is a review of some of the process models for elder mediation identified through our exploration, concentrating on models that bode well for the practice when abuse or neglect is alleged or suspected.

a. Interest-Based Approach

The interest-based approach is very conducive to mediating issues when elder abuse and neglect is alleged or identified. It is a principled negotiation that focuses on interests or needs with a primary goal to help participants reach mutually acceptable agreements. It offers support to the problem-solving models that view conflict as a problem to be solved. Mediators try to help parties succeed by directing them toward outcomes in which all participants have at least some of their needs met. Collaborative interaction is considered the best way to achieve a good agreement. Moore (1996) supports the idea that the mediator's goal is to reach agreement and settle disputed issues. Moore uses a twelve-stage mediation model. The first five are preliminary stages that aim to "separate the people from the problem". The remaining seven stages of Moore's model follow closely the elements of Fisher and Ury's principled negotiation (1981) method: begin the mediation session, define issues and set an agenda, uncover hidden interests of the parties, generate options for settlement, assess options for settlement, complete final bargaining, and achieve formal settlement (Moore, 1996). The majority of certified elder mediators to date report using some form of the interest-based approach.

b. Insight Approach

Canadian mediators, Kenneth Melchin and Cheryl Picard, developed this model using Canadian scholar Bernard Lonergan's work on learning as a theoretical base. The Insight approach views human behavior as fundamentally relational. Conflict is understood as emerging out of an interactive framework by which people make meaning out of their environment, and seek to realize what matters to them—their "cares". Conflict is viewed as arising from the experience of "threat-to-cares". This is because it is the actual or perceived threat to our desires, disruptions of expected patterns of cooperation, or judgments that ultimately drive the intensity with which the parties in conflict maintain a position or seek to impose harm on the other. In turn, these defensive responses are more often than not experienced as an "attack" on the others' values. Insights help parties develop new patterns of interaction whereby cares can mutually exist without the generation of threat (Sargent, Picard and Jull, forthcoming).

Cares include more than the pursuit of our individual or collective interests, needs or values. They also include our value-based expectations of other's behavior, our assumptions of how people ought to act, the presumed patterns of co-operation we consider necessary, and our value-based judgments of progress and decline that we perceive in the behaviors and intentions of ourselves and others (Melchin and Picard, 2008). Addressing emotions is an important strategy, insofar as emotions point to the experiences of threat-to-cares that are so central to the defend-attack patterns in conflict. The Insight approach understands that although the values in a conflict are often obscure, the feelings and defensive responses are not (Picard and Jull, forthcoming).

The Insight approach has developed practical strategies that help parties to achieve "insight" into their experiences of threat that have become manifest in defend-attack patterns of interaction. When parties learn about what matters to others, why those things matter, and how what matters is perceived to be threatened, their reasoning about the intent of the other often changes. This newfound uncertainty about the other generates curiosity and a willingness to talk and listen to each other (Picard, 2003). The insights gained through new interpretations and understandings are what diminish the threat response and enable parties to find new possibilities in which their cares can mutually co-exist without generating threat.

The Insight approach has developed practical strategies that help parties to achieve "insight" into their experiences of threat that have become manifest in defend-attack patterns of interaction. When parties learn about what matters to others, why those things matter, and how what matters is perceived to be threatened, their reasoning about the intent of the other often changes. This newfound uncertainty about the other generates curiosity and a willingness to talk and listen to each other (Picard and Melchin, 2007). The insights gained through new interpretations and understandings are what diminish the threat response and enable parties to find new possibilities in which their cares can mutually co-exist without generating threat.

To facilitate the insights that are part of learning, insight mediators use specific skills that explore the interpretive process through which the parties make meaning that a threat exists. These insights are achieved through deepening conversations that enable parties to shift the conflict onto new ground and toward new possibilities for change because experiences of threat are reduced or eliminated. The practice of deepening uses skills that are familiar to interest-based, transformative, narrative and other conflict practitioners—skills that include such actions as reflective listening, strategic questioning, and reframing. Deepening in the Insight approach also requires the practitioner to be "intentionally responsive", and to use specific Insight skills such as linking, de-linking, verifying, bridging, layering, finishing and using (Melchin and Picard, 2008).

c. Facilitative Approaches

Among the many roles the elder mediator plays in mediation when elder abuse/neglect is suspected, the facilitation role is the most common one. Mediation approaches are not tightly contained and there is fluidity within the concepts. (Riskin, 2003) The approach elder mediators use is based on their highly developed facilitation skills, personality, experiences, education, cultural sensitivities and training as well as to when the abuse and neglect occurred. A facilitative mediator assumes that the participants are able to move from "what doesn't work for them" to developing better solutions that will heighten quality of life. A broad, facilitative approach helps the participants understand and define the issues they wish to address, including a discussion of underlying interests, rather than positions. A facilitative mediator helps parties become "realistic" about their situation, doing some reality testing based on their knowledge and experience. On the facilitative continuum, some elder mediators see their role as helping parties communicate and understand one another. At the other end the mediator, by virtue of his or her expertise, assumes that the parties want guidance in reaching an appropriate settlement. Lawyers, McIvor (2006) and Soden (2010), both report that this seems to happen more with elder mediators who have a legal background.

In most facilitative approaches family members take an "ownership" interest—instead of succumbing to court orders or a hastily adopted mediated decision made in caucus. Multiple short sessions can be set up which go a long way to rebuilding trust, especially where abuse and neglect are implicated, enabling family members to be fully prepared to move forward in each session. The family members work more effectively together as a family on an ongoing basis and both financial and emotional costs are less. Participants will not sign any legal documents without obtaining legal advice (Hoeller, 2010).

d. Transformative Approach

Transformative mediation invites participants to shape the process. According to this theory, what people find significant about conflict is that it alienates them from the sense of their own strength and their sense of connection to others (Bush & Folger, 2005). The basic tenets of the transformative approach suggest that rather than problems to be solved, disputes are viewed as opportunities for moral growth and transformation (Bush and Folger, 1994). This model of mediation focuses on the here and now, being attentive to the interactions of participants to find opportunities to foster empowerment and recognition. Empowerment involves strengthening individuals' abilities to reflect, make choices, and act in a conflict situation. Recognition means becoming more sympathetic and responsive to the other party's situation. Empowerment is realized when people understand their goals more clearly. Empowerment is independent of any particular outcome of the mediation. The "transformation" is in the consciousness of the individual.

To highlight the differences between an interest-based, problem-solving approach and the transformative model trainers often use the "rock band, next door" scenario. The scenario involves a band practicing their music, resulting in complaints of excessive noise from the neighbour. A problem solving approach would likely seek a compromise to the situation, negotiating days and times for the band to practice that did not interfere with the neighbour's need to relax from the stresses of work. A transformative approach would focus on ensuring that the parties reduce their hostility toward each other by coming to understand the motives behind each person's behaviour, and to relate to one another as individuals. For example, one neighbor could discover the importance that playing in a band has for the neighbour's self-worth, while the other neighbour could discover the importance of performing well at work for a similar reason. It would also focus on allowing the parties to decide for themselves how the issue could be solved, keeping in mind their individual and relational needs. Outcomes reached through the transformative approach may not be all that different from the problem-solving approach; however, it is the process of getting there that is so different and that distinguishes itself from approaches that emphasize problem solving and settlement.

e. Narrative Approach

Narrative mediation is an approach that encourages parties to tell their personal "conflict" story as a means of producing an "alternate" story that will lead them to a resolution of the dispute. It is based on theory which posits that people organize their experiences in story form as a way to make sense of their lives and relationships, and that "they act both out of and into these stories" (Winslade & Monk, 2000). Narrative mediators do not seek one "factual" story; instead, they find it more useful to accept each person's story as a lived reality and then "seek out the points where the story might incorporate some different approaches". A key task of the mediator is to lessen the rigid and negative motivations that parties attribute to each other's actions. This is accomplished by building party trust in the mediator and the mediation process; developing conversations that externalize, as opposed to internalize, the conflict; mapping the effects of the problem on the person; deconstructing the dominant story lines; and developing shared meanings about the conflict and it's solutions. Important to narrative mediators is the belief that the parties' conflict stories are drawn from the cultural stories of the world around them.

Narrative mediation has three phases: engagement, deconstructing the conflict-saturated story, and constructing an alternate story (Winslade and Monk, 2000). In the engagement phase, the mediator concentrates on establishing a relationship with the conflict parties by attending to the physical setting and the non-verbal behaviour displayed by all parties. Attention is also given to the roles that the mediator and the parties will take on as a result of the mediation. In the next stage, deconstructing the conflict-saturated story, the mediator works actively to separate the parties from their perceptions and understandings of the conflict by "undermining the certainties on which the conflict feeds, and inviting the parties to view the plot of the dispute from a different vantage point". The assumption is that elements of cooperation, points of agreement, and mutual respect have been left out of the conflict-saturated story, and deconstructing it can lead to creating an alternate story that includes these areas. The final stage of narrative mediation is to construct an alternate story. In this stage, the mediator is "occupied with crafting alternative, more preferred story lines with people who were previously captured by a conflict-saturated relationship". In narrative mediation the development of a cooperative attitude may be more important than reaching an agreement.

f. Adult Guardianship Mediation Model

The Centre for Social Gerontology (TCSG) in Ann Arbor, Michigan is a leader in Guardianship Mediation (http://www.tcsg.org). The Centre has several publications in the field and promotes a model of elder guardianship mediation that is based on United States guardianship law that is different from laws in other countries. Their recommendations for procedures for case screening criteria, assessing for ability to participate, identifying who will come to the table, assessing when abuse and/or neglect is an issue and procedures for the mediation itself, however, is still relevant to Canadian mediators. TCSG offers comprehensive Guardianship Mediation training to teach the specific knowledge base and skill sets required (TCSG, 2002).

Generally, throughout Canada as well as in other jurisdictions, there is considerable discussion and learning around capacity. This concept is critical in elder mediation. The more mediators understand capacity the more likely it is that they come to understand the crucial importance of the voice of the person at the heart of the conversation to be present in the mediation. Once a court determines that a person is incapable of making sound decisions then this determination is rarely reversed. Consequently, it is critical to ensure that the person is not deemed incapable if indeed s/he has many capabilities (Soden, 2010). It is also generally agreed by specialists in the field that families who participate in the adult guardianship mediation process prior to appointment of a guardian almost always find a less restrictive option than full guardianship (Castner, 2006; Largent 2009).

g. Therapeutic Elder Mediation Model

This model of elder mediation builds on the work of Howard Irving (Irving and Benjamin, 1995). Having trained as professional psychologists or social workers and coming with considerable experience in family mediation, these elder mediators have reported success in using a therapeutic model. Mediators commit the initial session to learning if there are any influential relationship patterns that could have implications for the flow of the elder mediation. This is typically where elder abuse and neglect presents itself. This is also where the subtleties of abuse and neglect are sometimes acknowledged. It is not unusual that these patterns have gone unrecognized by the family, as they have been an entrenched part of the family culture. With some narrative and strategic questions these patterns may be identified in the interactions and stories of family members from the initial contacts and sessions. When the initial interviews and assessments have been done and it is agreed that the elder mediation will happen the elder mediator often moves to an insight or interest based model. At this point, the families have experienced empathy at its best, have invested in the process and feel safe and empowered to continue. This model distinguishes family conflict from conflict in other groups and sets out techniques designed specifically with the family in mind.

The focus of the therapeutic model is on addressing concerns and naming issues while keeping the myriad of existing relationships growing and respectful. The role of the family cannot be replaced, so the key is to bring as many people around the table as possible. This can include a partner, brothers and sisters, adult children, a choir director in the church where the person sings, the bank manager. Members of the family separated by distance can be connected by technology. The elder mediator assists in keeping the situation calm and creates an environment to have a conversation by reframing and explaining things in a more gentle ways. This can bring in formerly ostracized members of the family and relationships are strengthened. A focused ingredient in this model is the wellness component and recognition of strengths and recalling of skills and strategies that worked in the past. Even when elder abuse or neglect is present participants can move to identifying together preventative strategies, roles and plans that will ensure, to whatever extent possible, abuse and neglect will not be repeated (McCann-Beranger, 2010).

h. Restorative Justice Approach

The restorative justice approach starts with intake, referral and screening by a professionally trained facilitator to determine that all parties have a voice and feel safe to proceed, whether the person who caused the harm accepts responsibility for it; whether all parties are willing to participate; and whether the older adult is capable of understanding and participating in the process. In the event that concerns emerge at this stage, a screening committee will review the case before it proceeds. Elder mediator and restorative justice expert Arlene Groh says that it is essential for facilitators and elder mediators to understand and be sensitive to the complex issues of elder abuse. In Groh's model, the two facilitators assigned to the case proceed with the process of listening and moving toward a more in depth understanding of the conflict. The facilitators invite everyone to a circle where conversation moves to a consensus about why the situation happened, how to repair harm and how to prevent further harm in the future. The circle is then brought to closure and attendees are contacted around three months later for follow up (Arlene Groh, 2008).

Restorative justice mediation has given rise to another model of mediation called "humanistic mediation." Humanistic mediation is based on beliefs in (1) the connectedness of all things and our common humanity; (2) the importance of the mediator's presence and connectedness with the involved parties in facilitating effective conflict resolution; (3) the healing power of mediation; (4) the desire of most people to live peacefully; (5) the desire of most people to grow through life experiences; (6) the capacity of all people to draw upon inner reservoirs of strength to overcome adversity, to grow, and to help others in similar circumstances; and (7) the inherent dignity and self-determination that arise from embracing conflict directly (Umbreit, 2001, p. 4).

i. Mediation Through a Law Firm (one example)

Ann Soden, a Quebec lawyer and elder mediator, finds elder mediation very helpful when working with families where the subtleties of abuse are present. Soden utilizes elder mediation in cases where there is exploitation and subtle abuse that is primarily psychological—from applying of pressure to exercise control over a person and to overprotect that person; to denying the rights of that person or limiting the access. The more egregious cases are referred to court. The family meeting is typically held in a professionally mediated conference to ensure a balance of power for all parties in the presence of a neutral party facilitator. It is important that all family members be informed that the mediator will not be practicing as a lawyer and will not be offering legal advice.

At the initial meeting the family signs an agreement and is given an agenda that establishes the rules of conduct for the session. The rules will include an undertaking by everyone of full disclosure, an undertaking that all communications in the meetings will be kept confidential and privileged, and a waiver of liability in favor of the mediator. Not all of the family may agree to attend, but nevertheless the meeting is held and any missing members informed of the agreement reached by those present. The meeting and the agreement will bear witness to the client's capacity and the presence of free and informed consent. According to Soden, the role of the mediator in this solution-based model is one of advocate, facilitator and support for the family and the person served. Understanding capability is paramount, as decisions have to be assessed according to the particular situation. Careful consideration must be taken before determining someone completely incapable.

A preventive component is implemented promoting later life planning. This assists in dispelling issues and complications where there is complexity in plans. It also includes who will represent the person served if s/he becomes incapable. A resource team is utilized as needed and a community of people is built around the person served. While Soden supports the person served to communicate what they want, she explains the limits on the powers of parties and obligations of the party to account for all they do in the presence of many witnesses, including a lawyer.

Elder mediation helps the family understand and ensures that the wishes of the person at the heart of the whole thing are understood, that person's rights are protected and where there is concern about abuse the appropriate protection is there but no more than is needed, imposing the least restrictions on their autonomy. It is too easy to signal adult protection and have a person removed from the situation. This of course means moving them from their life, as they know it. Often people have lived this dysfunction all their lives. There are ways of changing dependence on the abuser without robbing the person of their whole life. Because a person has diminished capacity is no reason to remove their rights, put them in a nursing home and transfer all their decision making to someone else. Elder mediation helps find the solutions that allow the people to have as much autonomy as possible (Soden, 2010).

If elements of abuse are present and mediation is offered at the outset, 80% of these cases would be resolved at that level. If elder mediation is early enough misunderstandings get resolved, elements of abuse are lessened and the subtle exploitations are reduced (Soden, 2010).

j. Mediation Advocacy Model

McIvers suggests that elder mediation, through its voluntary, non-coercive process, has the potential for enhancing elder rights, providing an acceptable form of minimal social intervention, and contributing to the prevention of elder abuse at early stages of relational conflicts between older people and their caregivers while in a nursing home or residential facility (McIvers, 2006).

Features of this approach include:

  • orchestrating the mediation in a safe, neutral environment where family members can discuss the issues that have gone unaddressed
  • ensuring the voice of the older person is of a paramount concern
  • scheduling meetings at the time and place most comfortable to the older person
  • working with family members and other caregiver involved to increase awareness and understanding of issues and disputes within the family that are causing stress for the older persons
  • educating participants about abuse and neglect and encouraging them to monitor and report potentially abusive situations.

Mediation has made it possible to resolve a high percentage of elder abuse cases, with greater client satisfaction and lower cost. Wisely used, the benefits far outweigh the risks. Attorneys who carefully prepare, and use the full range of their advocacy and inter-personal skills, will reap great rewards for themselves and their clients (McIvers, 2006).

k. An Ethical Model

The Elder Mediation Center of New Jersey has developed an Ethical Model of Mediation based upon five principles:

  1. Autonomy—The notion that every participant has a voice in the process and that participants are not coerced (i.e. the notion of free will).
  2. Beneficence—The notion that the participants are working towards a resolution that will be helpful and will ultimately do well.
  3. Do No Harm—The notion that the participants should not be worse off as a result of the mediation process and any resolution that may be achieved. There is no downside to the mediation process.
  4. Fidelity—The notion that the mediator is faithful to his or her clients, to ethical principles and to the mediation process.
  5. Fairness to All—The notion that the participants have an equal opportunity to participate in the process and have an opportunity to be heard.

This model views the Professional Geriatric Care Manager (PGCM) as an integral part of the elder mediation process. Using an Ethical Model for elder mediation, EMC-NJ considers the professional geriatric care manager to be essential when working with parties who are in dispute and are seeking a solution involving frail or vulnerable older adults. This approach differs significantly from other mediations models in that the PGCM is not the mediator. The PGCM supports the mediation by providing a care management assessment and formulating a plan of care that is used in the mediation process. The PGCM brings objective and professional guidance to a situation that is often fraught with emotion and disagreement. In recognizing the importance of the PGCM and the plan of care, the mediator uses the skills and recommendations of the PGCM to assist the participants in generating real options. The service is dedicated to upholding the ethical principles of autonomy, beneficence, avoidance of harm, fidelity and justice.

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