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

Section 3: Reviewing the research

Although there are limited studies, and some early reference to research in the area of elder mediation, clearly there is a need for more scholarly research—both quantitative and qualitative—to provide concrete knowledge regarding the effects of elder mediation with families. This can lead to the development of further knowledge and programs driven by evidence-based practice. To date, the positive claims regarding the value and effectiveness of elder mediation are based on a limited number of studies combined with anecdotal evidence gleaned from elder mediators who have a solid practice and are enthusiastic about their experience. The evidence and experience available is suggesting strongly that families who participate in the mediation process are reporting enhanced quality of life, improvement of fragile relationships, and reduction or prevention of incidents of elder abuse and neglect.

Researchers suggest that elder mediation can be used when a family is under stress and that mediation may prevent abuse from occurring. In some cases, where neglect or non-violent forms of abuse have occurred, mediation may be helpful when used in conjunction with other interventions such as protective services. It is critical that the mediator be aware of ethical considerations, reporting laws and obligations (Foxman, Mariani & Mathes, 2009). Family mediation can build support for participation of older people in a variety of ways that are safe and rooted in principles of self-determination (Gary, 1997; Schmitz, 1998; Bagshaw, 2003).

The elder mediation process produces positive outcomes for families on a number of levels. The obvious ones are spelled out in the final agreement. Less obvious but equally important, are the outcomes related to safety, security, dignity and respect which serve to effectively reduce the likelihood of elder abuse and neglect in the future.

Research allows us to explore what happens in elder mediation. It tells us what families say works best for them, why it works and what needs to be implemented and improved. The research that does exist suggests that elder mediation could change the face of healthcare, as we know it. Given the relatively new awareness of this area of expertise, it is crucial to gather information that would inform the development of a mediator model for the specialty of elder mediation. Most older people want to live in their own homes for as long as possible, they wish to be independent and where necessary, have the supports in place to remain independent and, like the rest of the world, to have their needs met and to be treated with dignity and respect. Information gathering—rooted in the voices of elder mediation users and validated through scholarly research initiatives—is fundamental to the on-going growth of elder mediation.

a. Australia Research—Models of Older Person Centered Mediation

A team of researchers from the University of Southern Australia (UniSA) led by Dr. Dale Bagshaw have received an Australian Research Council Linkage grant with six industry partners from the field of aging to develop, trial and evaluate models of older-person-centered family mediation to prevent the financial abuse of older people by their family members (Bagshaw, Wendt & Zannettino, 2009). Their hypothesis is that mediation can assist families to be more resilient and with early intervention can form a buffer for older people who are vulnerable or at risk of financial abuse from a particular family member. Based on evaluations of family mediation in family law cases where there is domestic violence (Bagshaw, 2003 & 2009), their premise is that specialized family mediation models for the prevention of financial abuse of older people by a family member may be effective in some cases. That is, if the mediation is voluntary and older-person-centered, victim safety and protection is assured, power imbalances are addressed and advocates and other supports are used to ensure that the needs of the older person are central and the voices of older people, with or without capacity, are heard.

In its recent press release the University of Southern Australia (2010) reported how the researchers are calling for older people and their family members to share their experiences and opinions in a confidential phone-in, with a view to developing family mediation and other strategies to prevent this kind of abuse. In the press release, head researcher, Dr. Dale Bagshaw, says that financial abuse of the elderly is alarmingly commonplace.

We found that the most common form of reported or suspected abuse of older people is financial abuse followed by psychological and physical abuse, though it is not uncommon for more than one type of abuse to occur together, she says. Financial abuse can include forgery, stealing, forced changes to a will, transferring money or property to another person or withholding funds from the older person and the failure of others to repay loans. It can also include the misappropriation of enduring powers when a trusted person—usually a family member—is legally appointed to manage the finances of an older person whose frailty is increasing and can no longer manage their own affairs. Increased extra-familial care as a consequence of government 'ageing-in-place' policies, the rapidly ageing population, limited resources for extra-familial care-work, and international agreements about human rights demonstrate that understanding and preventing abuse of older people by their family members is a social justice issue that should be given priority.

The press release further stated that a stage two of the project includes a national phone-in that hopes to gather information that will be used to develop older person centered models of family mediation to prevent such abuse. In the first stage of the project, researchers circulated two on-line national surveys, one for organizations servicing older people and/or their family as well as organizations who provide family dispute resolution services, and one for service providers from different disciplines who are family mediators or who work with older people.

Head researcher, Bagshaw, reports that the study aims to design, pilot and evaluate specialized models of older-person centered family mediation as strategies to prevent the abuse of older people by their family members in situations where the older person has capacity, has diminished capacity, and lacks capacity. The stated objectives are to:

  1. critically analyze current national and international research on the financial exploitation or abuse of older people by a family member and identify models of intervention designed to prevent the abuse;
  2. identify and analyze individual, structural and ecological factors, in particular gender, culture and rurality, which place older people at risk or make them vulnerable to financial abuse by their family members, and those protective factors which build individual and family resilience;
  3. identify existing strengths and gaps in national legislation, organizational policies and service provision currently responding to older people experiencing financial abuse from a family member;
  4. design, pilot, and evaluate specialized older-person-centered models of family mediation at primary and secondary levels of intervention, which focus on the best interests and safety of older family members, directly or indirectly include their voices in decision-making, identify and address protective factors, risk factors and vulnerabilities in relation to their property and finances and build resilient and protective family relationships; and
  5. actively engage industry partners in the research process to enhance their capacity to respond to older people who are at risk of or vulnerable to financial abuse from family members, develop strategies to protect older people and their property and finances and develop, maintain or strengthen important caring and protective family relationships.

As of late 2010, the final report had not yet been released but preliminary findings have provided some clear guidelines as to what to consider when designing older-person-centered models of family mediation to prevent financial abuse of older people. They highlighted that where abuse occurs, it is often because family members have a strong sense of entitlement to an older person's assets and older people are particularly vulnerable when they need care from a family member, or lose capacity because of dementia, strokes or other illnesses. It appears that some families are more resilient than others and can form a buffer for older people who are vulnerable or at risk of financial abuse.

The findings to date indicate that a significant number of older people in Australia are at risk of financial abuse from at least one family member and the abuse can be discovered too late for others to be able to intervene to protect the older person and his/her assets. Bagshaw reports that early intervention can enhance family resilience by improving the communication skills of family members, their commitment to the well being of their older family members, their problem solving abilities and capacity to be flexible, their links to supportive social networks and their positive working relationships with key professionals. Older-person-centered family mediation, if used as an early form of intervention, is one possible strategy which can enhance these factors and assist some older people and their families to develop strategies and plans in relation to the older person's finances and property to guard against potential risk of exploitation or abuse from a family member (Bagshaw, 2010).

b. The Cornwall Respite and Relief Elder Mediation Project

Outcome statistics from the earlier reviewed Cornwall project (at page 16) indicate that the introduction of an elder mediation approach could well result in considerable financial savings for the Ontario health care system. From April 2009 to August 2010, there were 99 referrals from the participating partners. Of these referrals 39.5% were from the Alzheimer Society, 54% were from the CCAC Case Managers and 6.5% were from other sources. The activities and intervention of an elder mediator is directly credited with the dramatic reduction of project participants' visits to the emergency room at local hospitals and subsequent admissions to acute care hospital. The very real implications of this program can be found in the lower admission rates to long-term care by people living with progressive dementias (Rivera-Mildenhall, 2010).

Worthy of note for the period 2009 / 2010, the projected number of emergency room visits was set at sixteen visits, yet there were no visits under the program. The projected number of admissions to acute care hospitals per year was set at eight but no admissions were required under the program. The number of long-term care admissions was projected at twenty-four but only nine were admitted (Rivera-Mildenhall, 2010). Clearly the program has achieved beyond expectations and it may be a model for future projects for health care initiatives not only in Ontario but throughout Canada and internationally.

c. Alaska Court System's Adult Guardianship/Conservatorship Mediation Program

The Alaska Study, reviewed earlier in this document on page 18 is another project model that has many implications for future health care and enhanced quality of life. This study reported allegations of abuse and neglect, or self-neglect in one-half of the mediations conducted through the Project. In all of these situations the mediator is "…responsible to the system of people involved in the decision-making process and for providing the structure and tools to voluntarily make mutually acceptable decisions, often under difficult circumstances. In this sense, the mediator's role is to empower the system so that it does not have to resort to outside parties, such as the courts, to make the decisions" (Largent, 2009).

Significant outcomes from the project as reported by both Largent (2009) and Carns & McKelvie (2009) include:

  • Judges and professionals began referring challenging cases to mediation that previously would have required costly court hearings to resolve.
  • Participants reached agreement on some or all of the issues in 87% of the cases mediated.
  • Mediations resulted in plans that enhanced the care and safety of high risk adults (those involving Adult Protective Services) 95% of the time.
  • Participants were satisfied with the agreements they reached 91% of the time.
  • Mediation was believed to be successful in avoiding contested court proceedings in "all but a handful of cases."
  • Participants were highly satisfied with their mediation experience.

d. The Center for Social Gerontology (TCSG)

Located in Ann Arbor, Michigan, the Center for Social Gerontology has pioneered the use of mediation as an alternative to guardianship since the early 1990s. It promoted mediation as a non-adversarial means of addressing the complex personal, financial and related issues that often precipitate the filing of petitions for guardianship of older persons by family members, friends or private guardianship organizations. In 2001, they released a four-state study the results of which found that mediation was effective in helping disputing parties in guardianship cases reach agreements in three-quarters of cases (Butterwick, Hommel, Keilitz, 2001).

The aim of this study was to determine the efficiency, effectiveness and replicability of mediation of adult guardianship cases. It sought to answer the following questions:

  • How do mediated guardianship programs work?
  • What are their structures, processes and procedures?
  • Do they work as intended?
  • Are they efficient?
  • Are they effective?

The study design had two major components: (1) a descriptive analysis of the operation of four guardianship mediation programs in Ohio, Florida, Wisconsin and Oklahoma; and, (2) an assessment of their impact. In their report, Evaluating Mediation as A Means of Resolving Adult Guardianship Cases Butterwick, et al. describe the use of mediation in cases in which guardianship over older persons was being pursued. In addition to the 75% success rate, the study determined that older persons, family members, program administrators and mediators were found to believe that mediation in these adult guardianship cases was effective in finding better or more satisfactory resolutions such as fewer guardianships, limited rather than full guardianships, or less restrictive alternatives to guardianship.

With regard to abuse, neglect and exploitation, TCSG maintains that when cases are egregious and there are allegations of physical, financial and/or emotional abuse, elder mediation is contraindicated. TCSG believes that in guardianship cases where abuse allegations are alleged the cases are probably better left in the court setting (Hommel, 2008).

TCSG has produced a publication entitled the "Elder Mediation Annotated Resource Library" (McCreary, 2008) that provides an annotated listing and brief description of some of the existing materials books/manuals/reports, articles, and video/on-line information they researched—on the development, provision, and evaluation of elder mediation.

e. Research to Inform Practice—Atlantic Canada (2009)

This qualitative research highlights the voices of elder mediation users whose perspectives were used to inform the further development of elder mediation practices (McCann-Beranger & Richards, 2009). Older people want to live in their own homes as long as possible, they wish to be independent and, where necessary, have the supports in place to remain independent. This research explored what happens in elder mediation and what families tell us works best for them, why it works and what needs to be implemented and improved.

The target population who could benefit from this research includes the social networks in which older adults are experiencing memory impairment or a progressive dementia. In this study participants were interviewed from various social networks comprised of older adults and their supporters, including family (e.g., spouses and adult children) and friends, and representatives from community organizations, health care professionals, and long-term care (McCann-Beranger and Richards, 2010).

This study used iterative, thematic analyses to examine and classify the experiences of the elder mediation users who, for the most part, had a family member with Alzheimer's or dementia and were feeling isolated and unable to cope. Several themes emerged related to social participation and inclusion. Overall, the findings indicate that participants reported feeling safe, validated and respected in the elder mediation process, and parents talked about being able to speak with their adult children in new ways. Some caregivers talked about feeling alone for such a long time, about how the stress associated with care was making some of them less patient than they may be normally. Harm was felt, whether intentional, or not. It was reported that elder mediation helped to alleviate the tensions brought on by the family circumstances.

Families shared that elder mediation helped them to have a conversation to decide how their family members and the senior could contribute to managing the care, considering all of the changes they were going through. They also shared that, once the family agreed to a plan to manage the change, and the more involved family members and others were in sharing the care, the less likely for abusive situations and the more likely for a heightened quality of care. Ninety-eight per cent of the participants said that they would recommend elder mediation to others whom they knew were having similar experiences and challenges as themselves. In addition, all participants expressed that the goals of mediation were achieved for the most part, and some stated that the elder mediation process exceeded their expectations.

Themes included:

  • feeling safe (participants felt that the mediator understood their concerns, cares and fears related to the challenges they faced)
  • having a sense of belonging—the mediators were knowledgeable in dementia and thus were immediately very empathic, making it safe for the parties involved to increase their participation and to share the most challenging things
  • increased levels of cooperation and collaboration amongst network members as they assumed new ways of listening to one another moving forward in the same direction
  • need for prevention—consistent among participants was a concern for ensuring good quality of life, such as the receipt of appropriate personal care and nutrition for the care receiver, to prevent illness and declines in well-being
  • physical abuse and psychological abuse both at home and in care facilities, by staff, as well as aggression by the care receiver toward his/her caregiver, were also identified as potential issues that may arise without an intervention, such as elder mediation.

    My wife was getting very verbally abusive and was not well. I couldn't go through the door but she would become very upset. She even called the police on me one day when she didn't recognize me. It was having an effect on me and the doctor said that it was affecting my health, (McCann-Beranger & Richards, 2009).

Nevertheless, it was also felt that elder mediation was able to assist family members to find ways to contribute, regardless of the distance of network members. For example, in some networks, while one member is designated as the primary caregiver because of his or her propinquity, other members may contribute financially from afar to help to support a housekeeper who can stay with their older adult. Participants reported an overall improvement in getting care needs met because of the elder mediation process. This, in itself, will work to reinforce a perspective based on prevention.

Participants in the research process were surprised about the degree to which mediation had helped bring focus to their needs, and how it challenged everyone in their circle of family and friends to assist in reducing the stress for all involved. Included in some of these mediations were people living with early stage, progressive dementia. The stories gave witness to the fact that families often identified ways they could support each other, while keeping levels of conflict to a minimum—thereby reducing the likelihood of abuse and neglect.

Study participants reported that the facilitated, focused conversations markedly decreased stress levels. Those dealing with moving a family member to community or nursing care—a much feared and drastic move—reported that an outcome of mediation was an increased likelihood that the person was cared for at home longer. Also sponsoring agencies noted a marked reduction of requests for individual counseling sessions to deal with stress. There was a heightened ability to distinguish from when people needed "counseling" and when they needed "mediation". When elder mediation was the chosen course, participants were empowered to come to agreements that would find family members offering more support and time than they would have done otherwise. All participants were satisfied with the elder mediation and would use the process again and all participants would recommend the process to others. Participants reported an overall improvement in getting care needs met because of the elder mediation process (McCann Beranger & Richards, 2010).

f. Elder Mediation Project (Great Britain)

The British elder mediation project as described on page 21 in this paper is an example of a project that demonstrated that mediation can be a suitable tool to catch aggravated conflict before it becomes a full-blown problem (Craig, 1997).

(It is worthy of note that Craig's doctoral research also focused on the theory that at the early stages of conflict in elder relations, mediation can contribute to the prevention of elder abuse (Craig, 1995)).

With respect to research Craig reported that the experience garnered from the elder mediation project identified that older people should be encouraged to develop their natural skills in managing their own conflicts. It was recommended that aging organizations be encouraged to develop a small core of older people trained in elder mediation to offer help in peer relations and that these organizations be encouraged to develop outreach into institutions where over-worked and under-paid staff, as well as their residents, find it difficult to cope appropriately with conflict. The project demonstrated that conflict resolution workshops were helpful to social groups working with and for elders. Specific training in mediation is important for professional social workers, counselors, and medical, nursing, and caring personnel to supplement their own expertise. Offering peer supportive services to others already working with older people in order to encourage them to develop their own elder mediation projects, was encouraged (Craig, 1995). The Elder Mediation Project also developed and offered the following ten general tips for those coping with conflict:

  1. Deal directly and quietly with those involved.
  2. Suggest a mutually convenient time to discuss differences.
  3. Give thanks and respect people for agreeing to discuss the difficulties.
  4. Describe the facts as you see them and tell how you feel about the situation.
  5. Listen carefully to other people's accounts without interruption.
  6. Check out with each other that you have understood the root causes of the difficulties and your individual needs in peacemaking.
  7. Offer to cooperate in finding mutually acceptable solutions to the situation.
  8. Discuss all issues, the hard as well as the easy ones, in order to gain successful resolution.
  9. Consider writing out and signing any agreement on complex issues.
  10. Suggest further discussions if there is a need to check improvements.

g. Restorative Justice: A Healing Approach to Elder Abuse (Arlene Groh, RN, BA)

This project, based in Waterloo, Ontario was described earlier in the paper on page 16. An important research finding associated with this project was that there were frequent occurrences of cases that are believed to involve abuse or neglect. There existed a reluctance to report abuse both by seniors and service providers, a consequent failure to intervene in cases of abuse and a shared perception that the retributive justice system had failed to resolve abuse issues.

Although causing physical, financial, or psychological harm to an older adult may be an offence under the Criminal Code, very few of these incidents come to the attention of the justice system. There were many reasons seniors avoided disclosing the abuse including: being afraid of losing the relationship with the person who is harming them, ashamed that someone they trust has mistreated them, and believing that police and other agencies cannot help. Professionals and other community members may also hide this crime. Reasons for such a response might include ageist attitudes that disrespect the senior's perspective, disbelieving the older adult's story, lack of knowledge regarding what constitutes abuse and how to intervene, and a personal discomfort with the issue (Groh 2009).

h. Elder Mediation Project—Dublin, Ireland

The Irish elder mediation project as described on page 20 in this paper has released initial findings of the pilot project. Their evaluation, still in draft form, points to a number of outcomes:

  • In many cases damaged relationships between siblings have been repaired and communication streams opened up.
  • Families were supported in developing care plans for their loved ones.
  • The Dementia Rights Advocacy Service reported better outcomes for the parent with dementia.
  • Those who reached agreemeSnt through mediation agreed that the outcome was fair and that they were satisfied with both the process and the results.
  • Families stated that they were provided with a safe environment to focus their energy on reaching solutions to their disputes.
  • Some participants perceived no changes in the situation itself but the mediation helped them to accept this and to move on (Dooley, 2010).

Conclusions that have been drawn from the pilot project to date indicate that Elder Mediation can be very effective in dealing with issues of aging. The draft evaluation stresses the importance of elder mediators requiring specialist knowledge of aging, dementia, capacity, community services and family dynamics (Dooley, 2010).

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