A BCLI/CCEL Report 

By Emma J. Butt

The British Columbia Law Institute and the Canadian Centre for Elder Law recently completed their report, Elder and Guardianship Mediation. The report is the culmination of a major, two-year project, generously funded by the Law Foundation of British Columbia. 

Recent legislation and private practice experience indicates that elder and guardianship mediation are important and positive new areas of legal expansion in Canada, and in British Columbia in particular. B.C. now has legislation requiring mediation in adult guardianship matters.1 The mandatory mediation provisions were included in the major reform of adult guardianship and substitute decision-making legislation contained in the Adult Guardianship and Planning Statutes Amendment Act, 2007 (commonly referred to as “Bill 29”).2 The fields of elder mediation and guardianship mediation are likely to expand rapidly once the guardianship mediation provisions are brought into force.

The Elder and Guardianship Mediation Project was born out of a need to establish practice guidelines and develop competencies and standards for mediators practising in these emerging and overlapping areas. The report also responds to the need for comprehensive research and analysis related to the challenges and issues raised in the context of elder and guardianship mediation, in recognition that these specialized practice areas are developing and continuing to expand. 

The Elder and Guardianship Mediation Report includes the following components:

• an outline of the overarching legal context;

• clarification of the meaning of the concept of elder and guardianship mediation;

• background on elder mediation in Canada;

• a comparative analysis of select U.S. court-annexed guardianship mediation programs; and 

• a discussion of ethical issues that arise in the context of mediating at that place where age and mental capacity intersect. 

The report provides a summary of the recommendations for best practices in elder and guardianship mediation related to training and standards for elder and guardianship mediators (including a list of recommended core competencies), ethical standards in elder and guardianship mediation, and mediation models and styles. The report also highlights recommendations, considerations and strategies for the development of court-connected guardianship mediation programs, which would be applicable to the development of a court-connected guardianship mediation program established pursuant to B.C. legislation governing adult guardianship mediation.

The report aims to substantively address legal, ethical, social and practice issues raised by mandatory and voluntary elder and guardianship mediation, and to develop informational resources to assist those engaged in the fields of elder and guardianship mediation. The report is the first comprehensive study of elder and guardianship mediation in Canada, bringing together various materials that should be considered before further exploring the question of how to move forward with the development of elder and guardianship mediation in B.C.

Individuals involved in the development of law and regulations require access to comprehensive information on elder and guardianship mediation in order to move forward. This report serves different needs for diverse practitioners and participants in mediation processes. 

The focus of the Elder and Guardianship Mediation Project is B.C., however, as elder mediation is in its infancy in Canada, the report’s recommendations will apply more broadly to elder and guardianship mediation outside B.C.

The report will be published in January 2012 and available online at: http://bcli.org/ccel/publications/report-elder-and-guardianship-mediation.

 

 
Emma J. Butt, Staff Lawyer, BCLI/CCEL

This article was published in the February 2012 issue of BarTalk. © 2012 The Canadian Bar Association. All rights reserved.