Equality and Justice
For People With Disabilities

ElderĀ Mediation

Published on November 22, 2017

Elder Mediation

Going to court can be an expensive, time-consuming, and emotionally draining endeavour. Oftentimes, litigating a legal matter results in one party “winning” and the other party leaving unsatisfied. Due to the adversarial nature of Canada’s court system, litigation can be harmful for personal relationships. This can be particularly damaging in the context of family and elder law where personal relationships are often at the forefront of many legal issues or civil disputes. Alternative dispute resolution, such as mediation, exists as a substitute to litigation for resolving civil disputes.

Mediation has been cited as a preferable form of alternative dispute resolution in the context of elder law.  Mediation is a voluntary, cooperative, and informal process. Unlike judges, mediators cannot impose a decision regarding a legal issue on parties to a mediation, and the outcomes of mediation are not binding on the parties. Instead, a mediator is a neutral third party that assists parties to a legal matter or civil dispute to come to a mutually agreeable resolution. While meetings with a mediator are often informal, they are private and confidential.

Within the practice of mediation is elder mediation. The Ontario Association for Family Mediators (OAFM) defines elder mediation as  “the mediation of any dispute or conflict involving an older person.”  Elizabeth Sterritt, an accredited elder mediator in the Ottawa community, notes that while elder issues have existed for millennia, elder mediation only began to emerge in the 1980s. Since then, the practice has grown in popularity as Canada’s aging population has increased.

Elder mediators are knowledgeable in the area of elder law and are familiar with the issues faced by elders and their families. The role of an elder mediator is to facilitate discussion between elders and their family members, friends, and caregivers in order to address various issues and transitions that elders face. According to the OAFM, some of the common issues addressed in elder mediation are: estate and retirement planning; driving and transportation; housing and living arrangements; healthcare and medical decision-making; safety in community and at home; abuse and neglect; caregiver responsibility; relationship concerns; new marriages and blended families; religious issues; holiday schedules; financial concerns; family business; guardianship; and end-of-life issues. 

One of the central benefits of elder mediation is its ability to bring people closer together. This is accomplished through both the use of technology, which allows mediations to occur across borders, and through a mediator’s capacity for finding common ground or mutual interests between parties to a civil dispute. In the context of an elder mediation involving caregiver responsibilities, a mutual interest between the parties may be ensuring that the elder involved in the mediation is properly cared for. Here, establishing this mutual interest is an integral part of ensuring that the parties come to a mutually agreeable solution regarding the elder’s care.

Problems can arise in elder mediation where parties seek the help of a mediator who is not accredited. Mediators need to have the appropriate skills and knowledge to assist with the complex, multi-generational issues that arise in elder mediation. Without these skills, the mediator can have seriously negative impacts on families involved in an elder mediation, and could cause more harm than good. Sterritt highlights that accreditation and specialization in specific areas of mediation is one means by which parties to a mediation can ensure that a mediator possesses the requisite skills.

[1] Kevin Gibson, “Promises and Problems in alternative Dispute Resolution for the Elderly” (2001) 2:3 Marquette Elder’s Advisor 82, online: <http://scholarship.law.marquette.edu /cgi/viewcontent.cgi?article=1252 context=elders>.
[2] Ontario Association for Family Mediation, “Elder Mediation”, online: <https://www.oafm.on.ca/family-mediation/elder-mediation>.
[3] Ibid.