Meditations on Mediation
My old friend Fred Hertz is arguably the nation’s leading expert on “gay divorce.” A lawyer, he represents partners in break-ups and has written a book on the subject, been interviewed on NPR, appeared on Oprah, and is frequently quoted in the press.
So, I was more than a little surprised when he told me recently that he doesn’t want to litigate cases anymore but instead, use his skills to help couples stay out of court. After spending years handling mostly property ownership disputes, he’s concluded that conflicts involving people in personal relationships are better resolved through mediation than the adversarial process. Even in “successful” cases, where his clients prevail, they often come out feeling bitter and disappointed.
I’ve been interested in the use of mediation in elder abuse cases for years despite the bad rap it’s had in our field. The negative bias is a spillover from domestic violence theory, which holds that power differences between women, the victims in most cases, and their male batterers make mediation inherently unfair and dangerous. That’s because of institutionalized inequalities and barriers to justice, resources and protection. But most elder abuse cases don’t involve societal injustices. When you take that factor out of the equation, what's left are the inequalities and unfair advantages that exist between individuals, which aren’t nearly as insurmountable.
Fred’s cases often involve extreme imbalances of power with respect to personality, money or class. “When I ask clients why they contributed to the purchase of homes but never went on title or why they contributed more than their share, they often tell me that’s how their partners said it was going to be and they were too intimidated to refuse." Sounds to me like a lot of the elder abuse cases we see.
According to him, mediation is often the best way to resolve these imbalances, especially for the weaker person who has the most to gain. As intimidating as it can be, it’s much safer and cheaper than litigation. He cautions, however, that whenever serious power imbalances exist, mediation has to be structured in a way that protects weaker parties, which usually means that they have advocates present, or at a minimum, mediators who are willing to take on this challenge. “Traditionally, mediation hasn’t been used in cases that involve any sort of intimidation or fear on one party's part, so mediators need special training and different protocols.”
Reticence toward mediation extends beyond the elder abuse network into the broader aging services community. That's according to the Center for Social Gerontology of Ann Arbor, Michigan, which has been pioneering the use of mediation as an alternative to guardianship since the early 1990s. In 2001, they released a four-state study, which found that mediation was effective in helping disputing parties in guardianship cases reach agreements in three-quarters of cases. They’ve also explored the use of mediation in elder/family caregiver conflicts. Despite the promise it holds, mediation has been slow to catch on, which prompted the Center to form the National Elder Mediation Network earlier this year.
Just as we can’t apply one-size-fit-all interventions to the widely divergent cases we see, neither can we afford to reject interventions wholesale. Instead, we should be exploring when mediation is appropriate and when it’s not. It would be a shame to let misplaced biases get in the way.
More on Fred Hertz
More on the the Center for Social Gerontology
Tuesday, October 24, 2006
Archstone Foundation Creates Community of Contractors
Last month I was at the second “convening” of Archstone Foundation grantees, representatives from projects funded under the foundation’s 5-year, $8 million Elder Abuse and Neglect Initiative.
Wednesday, October 11, 2006
Perpetrators with Dementias
A couple years ago, a friend who runs a dementia care program asked me to talk to her staff following a tragedy involving a client, a man with Alzheimer’s disease, who'd killed his wife. The staff was understandably upset. But what made matters worse was that some felt they’d seen it coming.
Tuesday, September 26, 2006
Synchronicity, Plumbers and Elder Abuse
Yesterday, I was composing a laundry list of the various disciplines and professionals that have a role to play in stopping elder abuse for a book I’m writing. It included all varieties of health and mental health care providers, bankers, judges, clergy, entomologists (don’t ask), auditors, mail carriers, social scientists and many, many more.
Wednesday, September 20, 2006
Elder ID Theft: Should We be Concerned?
Traditionally, those of us in the field of elder abuse prevention haven’t dealt with “consumer” crimes like telemarketing scams or identity theft. There was no evidence to suggest that elders were targeted, and some studies even suggested that elders were less likely than younger people to be victimized. Besides, our focus was on abuse by family members and acquaintances.
Tuesday, August 22, 2006
Follow-up on Government-Subsidized Elder Abuse
Although I welcome feedback, apparently my blog doesn’t. Seems it’s been rejecting comments. I’m exploring how to fix the problem, but in the meantime, I wanted to pass along an item from Lori Delagrammatikas, program coordinator of Project Master at San Diego State University’s School of Social Work:
Thursday, August 17, 2006
Consumer Choice or Government-Subsidized Elder Abuse?
Years ago, San Francisco’s multidisciplinary team was discussing a case involving flagrant abuse by a chore worker. When the group learned that the worker was being paid with public funds through the state’s In-Home Support Services program, we turned to Mary Counihan, supervisor of our APS and IHSS units, and chimed in unison “Fire him!”
Monday, July 24, 2006
Saying Goodbye to an Elder Champion
When Bruce Coleman retires from the Royal Canadian Mounted Police at the end of the month, it will be a tremendous loss for American elders and their advocates. As coordinator of “Project Emptor,” a position he’s held since 2004, Bruce has helped countless victims and “would be” victims of telemarketing fraud. Project Emptor, as in caveat emptor, Latin for "buyer beware," intercepts packages and mail that contain “bait letters” from telemarketers and checks or money orders from victims.
Monday, July 10, 2006
Offenders, Victims and Restorative Justice
Last month, I presented at the Offender Treatment, Victim Services, Restorative Justice conference in Miami, which was sponsored by the Institute of Evidence-Based and Best Practices. The conference was a bold one–it’s not that usual to bring victims’ and offenders’ advocates together, and when you throw in sessions on applying restorative justice (RJ) to domestic violence (DV), you know they were pushing the limits.
Monday, June 26, 2006
Remembering Rosalie Wolf
It’s hard to believe that today marks the fifth anniversary of Rosalie Wolf’s death. For many of us, her presence is still very much felt. Almost daily, we see citations to her work, references to JEAN, and news about the organizations she spearheaded and the awards she inspired.
Tuesday, June 20, 2006
Long Distance Undue Influence
Last week, San Diego prosecutor Paul Greenwood posted a message to NCEA’s list serve about an “articulate, coherent and charming” elderly woman who’d sent over $50,000 to telemarketers in Canada despite being warned repeatedly that they were crooks. She described feeling “hypnotized.” It reminded me of when Dennis Morris, a San Francisco prosecutor, came to a meeting of our multidisciplinary team more than a decade ago and asked if anyone knew of an expert in brainwashing.
Tuesday, June 13, 2006
Criminal Caregivers
Criminals shouldn’t be providing care to frail old people. That assumption is what’s driving more and more agencies, states and the federal government to explore criminal background checks for prospective long term care employees. But ensuring that vulnerable elders have trustworthy caregivers isn’t that easy.
Tuesday, May 30, 2006
Raising the Bar for Elder Abuse Research: Medline accepts JEAN
Kudos to Terry Fulmer, editor of the Journal of Elder Abuse & Neglect (JEAN), and members of her editorial board who successfully got JEAN included among the publications Medline indexes. Medline is the National Library of Medicine's searchable database of publications and is used by researchers, health care practitioners, educators, administrators and students around the world.
Wednesday, May 24, 2006
Ageism, Elder Abuse and Social Justice
It’s not surprising that Paul Kleyman would take offense at a “Close to Home” cartoon that ran in a recent edition of the Washington Post. In it, an elderly bald man is reading a tabloid called Aging Today, which has a wrinkled, swimsuit-clad elderly woman on its cover under the banner "1st annual swimsuit edition.” The cartoon’s caption is “A dark day in publishing.”
Monday, May 15, 2006
Walmart Benefits from Restitution Reform
The other day, I was updating a handout I use for presentations on financial abuse and decided to check up on a project I list in the "Best Practices” section. It's a program created to revamp Vermont’s restitution recovery system, which got started after a 2001 state auditor's report revealed that only 13 cents of every dollar owed for restitution had been collected during the previous year.
So, I was more than a little surprised when he told me recently that he doesn’t want to litigate cases anymore but instead, use his skills to help couples stay out of court. After spending years handling mostly property ownership disputes, he’s concluded that conflicts involving people in personal relationships are better resolved through mediation than the adversarial process. Even in “successful” cases, where his clients prevail, they often come out feeling bitter and disappointed.
I’ve been interested in the use of mediation in elder abuse cases for years despite the bad rap it’s had in our field. The negative bias is a spillover from domestic violence theory, which holds that power differences between women, the victims in most cases, and their male batterers make mediation inherently unfair and dangerous. That’s because of institutionalized inequalities and barriers to justice, resources and protection. But most elder abuse cases don’t involve societal injustices. When you take that factor out of the equation, what's left are the inequalities and unfair advantages that exist between individuals, which aren’t nearly as insurmountable.
Fred’s cases often involve extreme imbalances of power with respect to personality, money or class. “When I ask clients why they contributed to the purchase of homes but never went on title or why they contributed more than their share, they often tell me that’s how their partners said it was going to be and they were too intimidated to refuse." Sounds to me like a lot of the elder abuse cases we see.
According to him, mediation is often the best way to resolve these imbalances, especially for the weaker person who has the most to gain. As intimidating as it can be, it’s much safer and cheaper than litigation. He cautions, however, that whenever serious power imbalances exist, mediation has to be structured in a way that protects weaker parties, which usually means that they have advocates present, or at a minimum, mediators who are willing to take on this challenge. “Traditionally, mediation hasn’t been used in cases that involve any sort of intimidation or fear on one party's part, so mediators need special training and different protocols.”
Reticence toward mediation extends beyond the elder abuse network into the broader aging services community. That's according to the Center for Social Gerontology of Ann Arbor, Michigan, which has been pioneering the use of mediation as an alternative to guardianship since the early 1990s. In 2001, they released a four-state study, which found that mediation was effective in helping disputing parties in guardianship cases reach agreements in three-quarters of cases. They’ve also explored the use of mediation in elder/family caregiver conflicts. Despite the promise it holds, mediation has been slow to catch on, which prompted the Center to form the National Elder Mediation Network earlier this year.
Just as we can’t apply one-size-fit-all interventions to the widely divergent cases we see, neither can we afford to reject interventions wholesale. Instead, we should be exploring when mediation is appropriate and when it’s not. It would be a shame to let misplaced biases get in the way.
More on Fred Hertz
More on the the Center for Social Gerontology
Tuesday, October 24, 2006
Archstone Foundation Creates Community of Contractors
Last month I was at the second “convening” of Archstone Foundation grantees, representatives from projects funded under the foundation’s 5-year, $8 million Elder Abuse and Neglect Initiative.
Wednesday, October 11, 2006
Perpetrators with Dementias
A couple years ago, a friend who runs a dementia care program asked me to talk to her staff following a tragedy involving a client, a man with Alzheimer’s disease, who'd killed his wife. The staff was understandably upset. But what made matters worse was that some felt they’d seen it coming.
Tuesday, September 26, 2006
Synchronicity, Plumbers and Elder Abuse
Yesterday, I was composing a laundry list of the various disciplines and professionals that have a role to play in stopping elder abuse for a book I’m writing. It included all varieties of health and mental health care providers, bankers, judges, clergy, entomologists (don’t ask), auditors, mail carriers, social scientists and many, many more.
Wednesday, September 20, 2006
Elder ID Theft: Should We be Concerned?
Traditionally, those of us in the field of elder abuse prevention haven’t dealt with “consumer” crimes like telemarketing scams or identity theft. There was no evidence to suggest that elders were targeted, and some studies even suggested that elders were less likely than younger people to be victimized. Besides, our focus was on abuse by family members and acquaintances.
Tuesday, August 22, 2006
Follow-up on Government-Subsidized Elder Abuse
Although I welcome feedback, apparently my blog doesn’t. Seems it’s been rejecting comments. I’m exploring how to fix the problem, but in the meantime, I wanted to pass along an item from Lori Delagrammatikas, program coordinator of Project Master at San Diego State University’s School of Social Work:
Thursday, August 17, 2006
Consumer Choice or Government-Subsidized Elder Abuse?
Years ago, San Francisco’s multidisciplinary team was discussing a case involving flagrant abuse by a chore worker. When the group learned that the worker was being paid with public funds through the state’s In-Home Support Services program, we turned to Mary Counihan, supervisor of our APS and IHSS units, and chimed in unison “Fire him!”
Monday, July 24, 2006
Saying Goodbye to an Elder Champion
When Bruce Coleman retires from the Royal Canadian Mounted Police at the end of the month, it will be a tremendous loss for American elders and their advocates. As coordinator of “Project Emptor,” a position he’s held since 2004, Bruce has helped countless victims and “would be” victims of telemarketing fraud. Project Emptor, as in caveat emptor, Latin for "buyer beware," intercepts packages and mail that contain “bait letters” from telemarketers and checks or money orders from victims.
Monday, July 10, 2006
Offenders, Victims and Restorative Justice
Last month, I presented at the Offender Treatment, Victim Services, Restorative Justice conference in Miami, which was sponsored by the Institute of Evidence-Based and Best Practices. The conference was a bold one–it’s not that usual to bring victims’ and offenders’ advocates together, and when you throw in sessions on applying restorative justice (RJ) to domestic violence (DV), you know they were pushing the limits.
Monday, June 26, 2006
Remembering Rosalie Wolf
It’s hard to believe that today marks the fifth anniversary of Rosalie Wolf’s death. For many of us, her presence is still very much felt. Almost daily, we see citations to her work, references to JEAN, and news about the organizations she spearheaded and the awards she inspired.
Tuesday, June 20, 2006
Long Distance Undue Influence
Last week, San Diego prosecutor Paul Greenwood posted a message to NCEA’s list serve about an “articulate, coherent and charming” elderly woman who’d sent over $50,000 to telemarketers in Canada despite being warned repeatedly that they were crooks. She described feeling “hypnotized.” It reminded me of when Dennis Morris, a San Francisco prosecutor, came to a meeting of our multidisciplinary team more than a decade ago and asked if anyone knew of an expert in brainwashing.
Tuesday, June 13, 2006
Criminal Caregivers
Criminals shouldn’t be providing care to frail old people. That assumption is what’s driving more and more agencies, states and the federal government to explore criminal background checks for prospective long term care employees. But ensuring that vulnerable elders have trustworthy caregivers isn’t that easy.
Tuesday, May 30, 2006
Raising the Bar for Elder Abuse Research: Medline accepts JEAN
Kudos to Terry Fulmer, editor of the Journal of Elder Abuse & Neglect (JEAN), and members of her editorial board who successfully got JEAN included among the publications Medline indexes. Medline is the National Library of Medicine's searchable database of publications and is used by researchers, health care practitioners, educators, administrators and students around the world.
Wednesday, May 24, 2006
Ageism, Elder Abuse and Social Justice
It’s not surprising that Paul Kleyman would take offense at a “Close to Home” cartoon that ran in a recent edition of the Washington Post. In it, an elderly bald man is reading a tabloid called Aging Today, which has a wrinkled, swimsuit-clad elderly woman on its cover under the banner "1st annual swimsuit edition.” The cartoon’s caption is “A dark day in publishing.”
Monday, May 15, 2006
Walmart Benefits from Restitution Reform
The other day, I was updating a handout I use for presentations on financial abuse and decided to check up on a project I list in the "Best Practices” section. It's a program created to revamp Vermont’s restitution recovery system, which got started after a 2001 state auditor's report revealed that only 13 cents of every dollar owed for restitution had been collected during the previous year.
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