The First National Symposium on Ethical Issues for Elder Mediation will be held April 19-20, 2007 at Temple University s James E. Beasley School of Law, 1719 North Broad Street, Philadelphia, Pennsylvania.
The Montgomery County Mediation Center describes the Symposium as follows:
The Symposium will feature Harry R. Moody, Nancy Neveloff Dubler and Robert Baruch Bush who will be joined by distinguished panelists from the fields of mediation, elder law, gerontology, bioethics, and geriatric healthcare in an effort to examine the ethical issues that arise during mediation involving older adults.A movement in the American judicial system favors methods of resolution of disputes not involving courts, except as a resource of last resort. See: Mediation Solution, published by the National Arbitration Forum (NAF), which lists current articles about mediation. See also: "Practical Dispute Resolution" Seminar on "National Conflict Resolution Day", posted October 14, 2006, on the PA Elder, Estate & Fiduciary Law Blog.
Elder mediation is a rapidly growing specialty of mediation practice and reflects the confluence of two trends: an increasing elder population and the growing appreciation of the value of mediation. With the development of elder mediation practice has emerged a set of issues particular to the aging population.
The First National Symposium on Ethical Standards for Elder Mediation will bring together mediators and interested stakeholders from many disciplines within the aging services network to exchange ideas, share experience and work to define best practices and ethical standards.
Products of the Symposium will include recommendations for standards of practice, the identification of topics for further examination and published articles in a scholarly journal.
In 2005, the American Bar Association's General Practice, Solo and Small Firm Division and the NAF collaborated on a survey designed to discover members’ needs and preferences regarding negotiation, mediation, and other forms of ADR. The result? "A decided majority (over 85%) of GPSolo respondents believe that their clients' interests are at least sometimes best served by offering ADR solutions."
Within this expanding "alternative dispute resolution" field, a distinctive aspect involves mediation of disputes involving older persons. The disputes are often very emotional and open-ended, involving family members of different relationship, locations, & ages. The issues arise from difficult & private decisions of an elderly person, who may have limited resources or options, and who also who may experience declining health or awareness, therefore greater vulnerability.
At the beginning of such a process, there may not be a formal dispute to be adjudicated, only a situation to be addressed before a crisis arises. Thus, fact-finding, communication, and professional advice likely will precede any effective consideration of options or the ultimate decision-making. ADR is more of a problem-solving process involving senior citizens than a dispute-resolution determination by a third-party adjudicator.
Mediation is premised upon a willingness by those people directly affected by the problem to communicate and, ultimately, agree, whether unanimously or with compromises. It also anticipates that further problems may develop, which should be addressed by the same approach or a more informal one modeled upon it.
Elder ADR involves professionals who can provide perspective, advice, and structure, and who encourage constructive movement towards firm decisions. Likely issues involving a senior citizen include mobility (like driving), suitable housing, effective care giving, management of finances, estate planning, health care provisions, medical decision-making, and maintenance of healthy family relationships. The role of a professional is less that of an advocate, and more that of a facilitator and advisor.
For a sampling of recent articles on this topic, see:
- "Mediators Ease Decisions on Elders", by Maggie Johnson, Boston Globe (12/03/06).
- "Elder Mediation: Optimizing Major Family Transitions", by Rikk Larsen & Crystal Thorpe, 7 Marq. Elder's Advisor 293-312 (2006).
- "When Aging Leads to Family Conflict", by Arline Kardasis and Rikk Larsen, Massachusetts Lawyers Weekly (April 2005).
- "Elder Decisions in the News", posted & updated by Elder Decisions.
The promotional material recognizes this movement and the important distinction in the resolution process:
The Symposium is part of a larger national effort to offer high quality mediation services to older adults, their families and service providers. Private mediators, community mediation centers and statewide projects are developing elder mediation programs that intentionally reach out to older adults and collaborate with the aging services network and the courts. Many programs utilize older adult peer mediators to conduct intake, co-mediate and serve on advisory committees.The First National Symposium on Ethical Issues for Elder Mediation is an effort to address the special practice issues that arise when working with the older population.
Although older adults may become involved in the same sorts of disputes as do adults of any age, there are conflicts which, by their nature, are experienced particularly in the lives of the elderly. These include: disagreements among family members over the appropriate caregiver and level of care for a parent in his or her own home; decisions around nursing home placement; financial and estate planning matters; the need for the appointment of a guardian and the selection of the guardian; and health care and end-of-life decision-making. Even in cases where the subject of a dispute is not specifically age-related, age may play a significant role in how well the older adult s voice is heard in the conflict.
When conflict involving an older person occurs, increased vulnerability and the challenges of decision-making can be experienced by anyone involved in the conflict spouses, family/non-family caregivers, grandchildren, neighbors, medical and long-term care personnel, etc. The level of concern rises when the older adult is physically frail or exhibits signs of cognitive impairment. Struggles may occur regarding an older adult s desire for independence and autonomy and others concerns about safety and the impact of the older adult s choices on both the older person and their own lives. Any participant in the dispute may feel loss of control. Even in families that are otherwise close and communicate well, confusion, fear and anxiety may increase as both older adults and family members struggle to understand each other and make decisions.
It aims to address these questions:
- What are the ethical issues involved in elder mediation?
- How do existing ethical standards apply in elder mediation and are additional standards needed?
- What is the impact of societal bias regarding aging upon the value of self-determination and the mediation process? Upon mediator neutrality and impartiality?
- What is sufficient capacity to participate in mediation? Under what conditions?
- Who determines capacity to participate?
- What are the ethical responsibilities of the mediator when a capacity issue is identified?
- Do new ethical and practice issues arise for the mediator when the content of the dispute has ethical dimensions?
- Montgomery County Mediation Center, a non-profit community mediation center in Pennsylvania that has developed expertise in elder mediation
- Elderly Law Project of the Temple University James E. Beasley School of Law
- Institute for the Study of Conflict Transformation, Inc., a national think tank on conflict interaction.
- National Elder Mediation Network, organized by The Center for Social Gerontology
I updated some links in this posting. I note that materials (described below) from this Symposium can be obtained through the Montgomery County Mediation Center as summarized at this link.
Materials from the Symposium are available for purchase, including the participant handbook, a training video that addresses the ethical implications of practice decisions in elder mediation (currently being produced), and a DVD of a dialogue that occurred during the Symposium between Robert Baruch Bush and Nancy Neveloff Dubler, two intellectual powerhouses who have very different views about the mediator's responsibility for the ethical outcome of a mediation.