A new report on mediation in adult guardianship matters is calling for specific training and standards in the field.
The report released by the Canadian Centre for Elder Law last week emphasized the increasing importance of the issue given Canada’s aging population. It noted British Columbia’s recent introduction of mandatory mediation in adult guardianship matters through new legislative reforms as well as experiences in the United States in that area that raised several ethical concerns. They include the need to ensure the capability of participants to mediate; conflicts of interest; the necessity for legal representation; and abuse and neglect. Elder mediation, according to the report, “requires a particular degree of sensitivity and skill on the part of mediators.”
“Elder mediation is growing and there is a need to establish practice guidelines and develop competences,” it added.
As the report noted, the issue of mental capacity itself isn’t generally a suitable area for mediation. But other issues related to guardianship, such as who the guardian will be and the extent of that person’s powers, are questions amenable to negotiation and agreement. But given the older person’s vulnerabilities, there are several legal and ethical questions for the mediator.
As a result, the report makes several recommendations. They include training for mediators as well as ethical standards in such matters. It noted that mediators must determine whether the parties have the capacity to participate in the process meaningfully and said pre-mediation interviews are crucial. In addition, it emphasized that in court-connected guardianship mediation, there should be an established process for handling complaints about mediators on the roster and called for an established code of conduct for them.