What Are the Principles of Elder Mediation?
The common benefits of mediation over litigation, including reduced costs and a greater chance of an amicable outcome between parties, become even more pronounced when one or more of these parties are elderly.
Mediator Lidia Casselman examines these benefits more closely in this article, with a focus on the legal disputes most commonly encountered by the elderly, and shares the philosophy that guides her own practice of elder mediation.
To give our readers a basic foundation, what is meant by ‘elder mediation’?
As per the Mediators’ Institute of Ireland, the institution of which I am a member, “Mediation is a process in which an independent, neutral mediator assists two or more disputing parties in resolving the discord in a collaborative, consensual manner.”
An ‘elder’ is generally considered to be a person above the age of 60. Therefore, elder mediation is the process of mediation in which an elder could be either a part or a beneficiary.
How elder mediation often overlap with family law?
Elder mediation can unfold over a whole array of causes. However, over 90% of cases concern family issues. Generally, this is more likely due to their dependent nature within a family. Issues could arise from different life circumstances, such as choosing a nursing home, disputes over care-giving responsibilities or disagreements regarding future financial planning, but it can also concern more severe matters like elder neglect or abuse. This is where elder mediation overlaps with family law.
They overlap mainly in purpose – to assure fairness and protection of an elderly person’s rights – but they differ in their approaches. While family law creates a clear and fast way of sorting disputes, it can often be rigid, neglectful of feelings and emotions, and thus imposing a third-party position that cannot be ignored without consequences; a fact that can ruin lives and relationships. By contrast, mediation creates a safer environment that will eventually lead to less ill will due to its more personal and empowering approach.
What are the more common health or legal issues experienced by the elderly that a mediator can assist with?
There is no conflict in which mediation cannot play a significant part, whenever the parties involved are willing. Any conflict implies hard feelings, sentiments of mistrust, hate and, most of all, fear. The most common issues we see solved using mediation are conflicts within families regarding elder care, such as personal preferences, the type of medical approach that should be followed, mistreatment, abuse, and financial pressure related to nursing care.
We also see conflicts between a nursing home and the family of a resident, or conflicts between staff of nursing homes and their elderly victims. Some nursing homes see the mediator as part of the ’family’ and mediation is a more advantageous and financially viable tool of sorting these internal and external disputes. Other conflicts refer to issues between an elderly person and friends or neighbours, former employers, health care facilities or other governmental institutions, just to name a few.
Elder mediation can unfold over a whole array of causes. However, over 90% of cases concern family issues.
In what way does mediation help to address these problems?
The common denominator of all conflicts is a loss or the threat of a loss. This loss can have a material form, like a financial loss or the loss of material good: a car, a house, etc. In other cases, it may be an immaterial loss, such as loss of a right or of an advantage. Every loss is accompanied by a deep sense of injustice and fear. The elderly are a vulnerable category and, although most of them do not show it or verbalise it, they surely feel it.
Mediation, as a process, offers a very human approach to both the person and the issue. We start by addressing the feelings and emotions of the client and, once the client feels understood and accepted, the process progresses towards the brainstorming part of the mediation that will more likely conclude in a practical solution that will deliberately benefit all parties involved. The mediation process gives the subject the confidence they need in order to find within them a desire and strength for a solution.
What does the typical mediation process look like?
What makes the mediation process unique is its complement of features: it is a voluntary process that is private, confidential, informal and flexible, with no time limits or rules on how the mediation should be conducted. Each mediation can and should be tailored to meet the parties’ needs. The mediator is simply a facilitator, assisting the parties in reaching an agreement or settlement, while remaining independent and impartial throughout the process.
The typical mediation process involves five parts:
- Introductory statements, where the mediator presents the features of the mediation, the role of a mediator and the applicable frame;
- Joint or separate discussions with each party involved, depending on the nature of the conflict and the feelings involved;
- Assessing the problem —a crucial stage, as the mediator will be able to get to know each party’s position and expectations, but also wisely set the stage of the process and build the dialogue by keeping it positive and encouraging;
- Brainstorming, which in a practical sense means bringing to the table different ideas, solutions, scenarios or proposals about what a possible agreement would look like. The mediator will continue to arbitrate the process, constantly enabling the parties to consider the others’ positions.
- Writing the final detailed settlement or agreement that will have to be approved and signed by all parties involved. If a settlement cannot be reached, the mediator will assist all parties to decide whether to try again take the case to trial.
During this process, are there any particular pitfalls that mediators and clients should be aware of?
The most common pitfall of the mediation process lies in its own nature. Being a voluntary process, each party can refuse to negotiate. The whole process can end abruptly and suddenly at any given point during the lengthy and ongoing mediation operation if one party leaves or refuses to cooperate any further. This can generate frustration and a deep sense of abandonment that can worsen the conflict.
The elderly are a vulnerable category and, although most of them do not show it or verbalise it, they surely feel it.
Meanwhile, mediators need to be aware of their impartial role. Human nature tends to be generally subjective and a mediator might find themselves sympathising with one party to the detriment of the other. This is even more likely when one of the parties is an elder, as one tends to favour the more vulnerable side. The mediator must keep their objectiveness in check at all times and at all costs.
How have you witnessed the practice of elder mediation changing during your time in the sector?
My personal journey as a mediator started at the end of 2017. Although mediation had been a part of the general framework governing separations and divorces in Ireland since 1989, it was only in 2017 when mediation was given special recognition in Ireland’s civil justice system by the Mediation Act, enacted on 2 October 2017 and applied from 1 January 2018. This act states the obligation of being offered the possibility of using mediation as a resolution for a dispute, while also regulating its process and features.
I consider myself lucky to be part of the first generation of mediators trained within this statute. Due to the high rate of success (somewhere between 75% and 90%) I could witness how mediation’s popularity increased and started being used in different areas, including elder mediation. Due to the vulnerable nature of the subject, the elderly need to be heard, understood and empowered to choose the outcome of the conflict they are part of. Mediation is the enabling process that does exactly that.
Do you have any predictions for how this area of law will develop in the years to come?
Elder mediation is a growing practice area. In most countries, mediation – including elder mediation – is now seen as a more human approach to solving conflicts, and which is clearly easing a general overload of litigation. Judges are recommending mediation at the beginning of the litigation process and solicitors are required by law to advise clients to consider mediation to resolve the dispute. While some US states do recommend mediation, other states are now mandating a form of alternative dispute resolution prior to any form of litigation (from my own experience, South Carolina requires this for the circuit and family courts). I expect this empowering approach to soon spread globally because of its incontestable benefits. Ideally, people will soon prefer mediation due to its successful human approach and will even recommend it. There is no better advertisement than a happy customer.
Human nature tends to be generally subjective and a mediator might find themselves sympathising with one party to the detriment of the other.
About Lidia Casselman
What drew you to add elder mediation to your practice?
In 2016 when I completed my Healthcare Supervisory Management degree at Kinsale College, County Cork, I really wanted to get an insight of the managerial side of things, but one cannot have healthcare and management without touching upon the subject of the vulnerable elderly. I realised then that they represented a large category of the population that often struggles with far more issues that we could imagine.
Personally, I have always had a soft spot regarding the elderly due to my strong relationship with my grandmother. I grasped an indescribable love that only a grandparent can feel and provide. But the elderly are not just the stereotypical image of a peaceful person rocking on a chair. They are not spared from troubles and conflicts – in fact, they might even have more problems and challenges that younger people could imagine. I realised then that mediation could be the most caring approach for an elderly person to solve any conflict they might face. I knew I could be good at it and that was my starting point.
Professionally, throughout my legal career I gathered a fair knowledge of the litigation process with all of its advantages and disadvantages. As a mediator I learned the absolute advantages of the mediation process. I find mediation a more human, elegant and empowering way of resolving conflicts that gives people the opportunity to be empathetic during the process.
What is that motivates you to achieve the best possible results for your clients?
Mediation is my way of helping people to deal with conflict. Conflict is, unfortunately, an eminent part of life. We wish it was not, but we know it is. We cannot hide from conflict and it is sad that most people were never taught how to deal with it. Children rarely have a class in school about dealing with conflict, and sometimes parents or families may not present a good example of conflict management. Unmanaged conflicts affect people’s quality of life and even ruin one’s mental or physical health. To solve them requires a combination of counselling with an outside purpose.
Further, I strongly believe that we are each born in this world with a set of innate given talents and abilities. We are each uniquely gifted, and that is a great thing, as all talents are needed in a healthy society. These gifts can be used to help us make a living, but also to the benefit of others. I find fulfilment in helping others, in realising that I can have an impact in changing lives for the better. Nothing beats the feeling of seeing people shaking hands and being able to look each other in the eye again after solving a conflict. I will continue to improve myself at helping people that way.
Can you share anything about your plans for the autumn of 2022 and beyond?
Alan Lakein once said: “Planning is bringing the future into the present, so that you can do something about it now.” Sometimes we make plans, other times the plans come to us. One of the beneficial consequences of the COVID-19 pandemic (trying to keep a positive approach) was that people were encouraged and successfully adapted to the use of online communication and remote work, and mediation was no exception.
Beginning in 2019 I was given the opportunity to travel to the US more often, and a few months ago I moved to South Carolina temporarily. While I am still working remotely with and for my Irish clients, one of my plans for the autumn of 2022 is to become certified as a mediator in South Carolina. It could be a lengthy process, but success is the result of small steps taken with purpose. At the moment I try to make myself familiar with the US culture and legal system in order to acquire the knowledge and skills required to successfully assist US clients through mediation.
I recently became part of the Mediation and Meeting Center in Charleston that offers pro-bono mediation for clients within the low income category while launching my own mediation practice, Access Mediation Services in Myrtle Beach.
As already mentioned, I will continue to serve my Irish clients and the Romanian community in Ireland through online mediation as one of my continual goals. As Albert Einstein said: “If you want to live a happy life, tie it to a goal.”
Lidia Casselman, Legal Consultant/Mediator/Commissioner for Oaths
Ard Na Clug, Bellmount, Innishannon, Co. Cork, Ireland
300 Wembly Way, Murrells Inlet, South Carolina, USA
Tel: +353 86-847-4598 (Ireland) | +1 843-485-2562 (USA)
Lidia Casselman was born in Romania, graduating from the Alexandru Ioan Cuza Police Academy of Bucharest in 2000 with a major in Law. She would then move to Ireland in 2004, where she worked in business management in both Dublin and Cork for 12 years. In 2016 she began work as a legal executive in Cork, specialising in Irish immigration and, later, Probate. She soon became a member of the Teaching Council of Ireland as a qualified law teacher for third-level education.
As a bilingual Romanian professional in Ireland, Lidia has often worked as an interpreter for Access Trnslation in the courts of law, the Irish police and other institutions. In 2017 she was appointed as a Commissioner for Oaths by the Supreme Court of Ireland and graduated Griffith College’s Professional Law Faculty with a Certificate in Mediation. In 2018 she became a full member of the Mediators’ Institute of Ireland with qualification in all areas, including family law. Since then she has been the only mediator in Ireland able to provide mediation services in both English and Romanian, a skill which she has used to serve the sizeable Romanian-speaking Irish community.