Generously funded by the Law Foundation of British Columbia, this report is the first comprehensive and internationally comparative study of elder and guardianship mediation in Canada.

As a person ages, mediation may be used to resolve disagreements in the context of estate planning, financial planning, organizing caregiving, developing a housing plan, discussing lifestyle choices—varied circumstances where an older person may involve family or other support people in problem-solving, especially where there is a desire to resolve a legal matter without going to court.  Anticipated changes to guardianship law in BC include mandatory mediation in certain circumstances.

Elder and guardianship mediation is a new but growing area of practice.  The work gives rise to complex ethical and practical questions in regard to maximizing the ability of the older person to participate in decisions about his or her future as well as ensuring age-based discriminatory assumptions and values are not affecting the decision-making process.

“As a province we are now at the precipice of proclaiming new legislation governing adult guardianship mediation and also of tremendous growth in the field of elder mediation, based on demographics,” says Executive Director Jim Emmerton.  “In order to move forward practitioners, policy-makers and educators require access to comprehensive information on elder and guardianship mediation.  This report fills that need.”

This large report includes consultation feedback from elder mediation leaders from across North America and compares lessons learned from key pilot guardianship mediation programs in other jurisdictions in the US and Canada.  The report concludes with recommendations for training and standards for elder and guardianship mediators, ethical standards for practice, mediation models and styles, as well as for the design and development of a court-connected adult guardianship mediation program in BC.

The report is available online at http://www.bcli.org/ccel/projects/elder-and-guardianship-mediation.

The Canadian Centre for Elder Law strives to be a leader in law reform by carrying out the best in scholarly law reform research and writing and the best in outreach relating to law reform as they relate to older adults.

Join Karen Redmond and Nicole Garton-Jones of Heritage Law for lunch and a review of important upcoming changes to family law, wills and estates and incapacity legislation in BC.

Karen Redmond will review proposed significant changes to British Columbia’s family law legislation as set out in the Ministry of Attorney General White Paper on Family Relations Act Reform.

Nicole Garton-Jones will review the Wills, Estates and Succession Act (WESA), expected to come into effect in middle to late 2011. It repeals and brings together the current Estate Administration Act, Probate Recognition Act, Wills Act, and Wills Variation Act and also amends dozens of other provincial statutes.  Nicole will also outline changes to incapacity law as set out in the Adult Guardianship and Planning Statutes Amendment Act, 2007 (Bill 29), which will come into force on September 1, 2011.

Pinnacle Hotel at the Pier

139 Victory Ship Way

North Vancouver, BC

Register here

I recently attended the 2010 World Summit & Symposium on Elder Mediation and presented on the topics of ethics and planning for incapacity.

I enclose my presentation slides on both topics:

It is estimated that there are currently 3.7 million Canadians over the age of 65. With the leading edge of the “baby boomers” poised to hit retirement in 2011, seniors will soon make up close to a quarter of the population. This demographic shift will have a profound effect on our society socially and economically.

The potential for issues and disputes will increase as larger numbers of older adults face life transitions and issues of incapacity, health care, housing, finances, family and relationship concerns, possible abuse and neglect, estate planning, end of life decisions and other significant concerns. Elder mediation is a potential solution to assist seniors, their families and other stakeholders facing a maze of options and tough decisions.

What is Elder Mediation?

The Elder Mediation Canada web site defines elder mediation as follows:

Elder mediation is a cooperative process in which a professionally trained elder mediator helps facilitate discussions that assist people in addressing the myriad of changes and stresses that often occurs throughout the family life cycle. Elder mediation typically involves larger numbers of participants including older people, family members, friends and others who are willing to give support. Depending on the situation it is not uncommon to include paid caregivers, hospital staff, nursing home and or community care representatives, physicians and other professionals.

Over the past 20 years mediation with age-related issues has been emerging as a distinct specialty in the field. Elder Mediation is now being recognized internationally as an important step in the continuum of care – promoting wellness, developing prevention strategies and enhancing quality of life. The focus is on addressing concerns and issues while maintaining and strengthening the myriad of relationships critical to the well-being of the older person.

Mediation is particularly well-suited for estate disputes because it provides for the consideration of factors outside the adversarial arena. Very often in estate disputes there is a multiplicity of interests and motivations.  Mediation provides a forum to not only identify those interests and motivations, but to respond to them.  When a dispute arises in the family context, mediation allows for consideration of the factors that might contribute to the dispute or interfere with its resolution.  For example, family dynamics, suspicion of abuse or undue influence, blended families with opposing views on testamentary entitlement, and interpretation of the testator’s, donor’s or settlor’s wishes can be more effectively considered in the mediation context than during the course of litigation.

Where family is involved, there is often a natural reticence towards litigation.  While the disputants want the opportunity to settle their disputes behind closed doors, they often need the assistance of a neutral third party to reach an appropriate resolution.  Mediation allows for the leveling of the playing field because each party has a voice and can participate in the process.  Each party has the right to have counsel present and the ability to influence the discussion and eventual outcome.  If there is a desire to repair relationships, mediation provides an opportunity for this reparation.  Parties can more readily move from a position-based stance to an interest-based stance.  It is possible that, once the discussion moves to one of interest, the parties will discover that they have common interests that can be brought to bear in resolving the dispute.

It is interesting to note that of the 31 millions people currently residing in Canada, 12.5% (3.9 million) are age 65 or older.  By 2040, it is predicted that 25% of Canadians will be over 65.  While there are currently only 150,000 people in Canada over 90 years of age, by 2026, there will be 400,000.  We are living longer and accumulating greater wealth.  This gives rise to the potential for even more disputes arising on either incapacity or death.  Mediation will be an important tool in resolving some of these disputes, including, but not limited to:

• challenges to the validity of a will (e.g. , preparation, execution or interpretation of a will, capacity to make a will, holograph wills, and will kits);
• personal injury claims (where the incapable or deceased person is injured or causes a third party injury);
• discrimination claims (including age and disability discrimination, and accessibility rights);
• elder abuse claims (including physical, psychological and financial claims, and civil and criminal remedies);
• dependants’ relief claims (where the deceased or incapable person is either the dependant or the provider);
• parental support claims (where the parent is in need and the child is capable of providing assistance);
• variation of trusts (the terms of any proposed variation, subject to court approval);
• grandparent access claims;
• long-term care issues (including consent to treatment and admission);
• power of attorney disputes (including capacity, and use and abuse issues);
• guardianship plans;
• access to health care issues; and
• housing issues (including tenancy issues, house-sharing arrangements and assisted living).

Find out more about our mediation services here.

Definition of Mediation

Mediation is a dispute resolution process by which two or more parties volunarily attempt, with the assistance of an impartial, neutral, trained person, to negotiate and formulate their own consensual resolution of matters at issue between them.

The mediator manages the process but has no independent decision-making power respecting the substantive outcome of the negotiation.

Definition of Collaborative Law

Collaborative Law is a relatively new dispute resolution model in which both parties to the dispute retain separate, specially trained lawyers whose only job is to help them settle the dispute.  If the lawyers do not succeed in helping the clients resolve the problem, the lawyers must step down and cannot represent either client against the other again.  All participants agree to work together respectfully, honestly and in good faith to try to find “win-win” solutions for both parties.  If a party decides to opt out and go to court, the collaborative law process ends and both lawyers are disqualified from any further involvement in the case.

Collaborative law is primarily used in the family law area in BC.  Other jurisdictions are experimenting with its use  in estate law and civil litigation.

Status of Mediation in BC

In November 2007, the Nanaimo Supreme Court registry launched a pilot project allowing any party to a family law proceeding to apply for mediation by delivering a Notice to Mediate.  The Notice to Mediate (Family)  Pilot Project expanded to Victoria and Duncan Supreme Court Registries in April, 2008.

In BC, Provincial Family Court litigants must meet with a Family Justice Worker and attempt mediation prior to setting a hearing unless a matter is urgent.  In Supreme Court, Judicial Case Conferences are a mandatory form of mediation prior to setting an application, other than a few limited exceptions.

The BC Attorney General has a Dispute Resolution office which supports a Family Mediation Practicum Project (of which I am a graduate).  The BC Attorney General’s office is reviewing the Family Relations Act and a recommendation of a required “consensual dispute resolution” (CDR) session prior to being permitted to commence the court process.

As of November 2007, all cases filed at the Robson Square (Vancouver) Registry between $5000 and $25,000 (except for debts) and all personal injury claims will be referred for a two hour mediation session at no cost to the parties.

Lawyers are also using mediators to resolve disputes.  The Law Society has a Fee Mediation Program for fee disputes between clients and lawyers, and the Canadian Bar Association offers mediation services for lawyers who are experiencing issues professionally and personally with other lawyers.

June 12-13, 2009
Donald Gordon Conference Centre
Kingston, ON

Presented by the National Elder Law Section and the Continuing Legal Education Committee of the Canadian Bar Association

Conference Co-Chairs:
Mary-Alice Thompson, (Kingston)
Prof. David Freedman, Queen’s University Faculty of Law (Kingston)

This conference brings academics and practitioners together to talk about one of the hottest emerging areas of law – Elder Law. Join us for one and a half days and bring yourself up to speed on the latest developments across the country. Good practice relies on solid research and good theory is informed by practical experience. This is a unique conference where academics will share their research and practicing lawyers their experience and you are invited to participate.

The program brochure and registration information will be posted on the CBA web site shortly.