Mediating Elder Financial Abuse

A few years ago, my long-time friend, Oakland-based attorney Frederick Hertz made the switch from litigating conflicts over money and property involving family members and partners to mediating them. When he told me that he’d teamed up with another mediator with 20 year’s experience as a family therapist to explore the legal and psychological interface of “family business” gone wrong, I was intrigued. So I sat in on a talk that he and Judy Barber gave at the Mediation Society in San Francisco earlier this year.

Their premise is that family conflicts involving money aren’t just about money. They’re also about longstanding sibling rivalries, parents’ playing off their kids against each other, and other assorted family dynamics and dysfunction. Which means that standard measures of success, like the size of settlements, are rarely adequate and even “winners” are likely to emerge feeling disappointed and wounded. Successful resolution, they contend, requires helping families move past their histories to engage in rational decision-making. That’s not to say that mediators should do family therapy, only that failure to address these issues altogether makes successful resolutions unlikely.

It seemed to me that their approach held tremendous promise for elder financial abuse cases involving family members, partners, and others with whom elders have relationships. Heidi, Li, director of the SF Consortium For Elder Abuse Prevention, agreed and offered to host a presentation to explore the use of mediation in elder financial abuse cases. It took place on December 4.

Elder abuse cases comprise a relatively small proportion of those that Fred and Judy mediate, but the hypothetical they prepared for the event did and had the group nodding in recognition. It involved an 80-year old widow with $2 million in equity and assets who’d borrowed against her home to help out a downwardly mobile son. When Mom started having trouble making the payments and called another son in a panic at the prospect of losing her home, he alerted two other siblings who were furious and wanted to sue their brother for elder abuse.

The first step in analyzing cases like this, according to Fred, is to assess the “real estate” of the transaction--the legal terrain, which includes the terms of the loan and the son’s ability to pay Mom back. But then, mediators need to look at the parties’ differences with respect to:

Their relationships to the property and assets in question. A property that’s seen as an investment to one family member may be “home” to another, with all the emotional attachment that that engenders.

The feelings of the parties (“I deserve this because I was there for Mom and you weren’t” versus “You’re too dependent on Mom; get a life!”)

Decision-making styles, which oftentimes are the result or cause of long-simmering resentments and conflicts.

Judy and Fred acknowledge that elder abuse cases may raise special considerations for mediators. These include uncertainties about capacity and undue influence, the limits of mediation with extreme power imbalances, and the effects of mandatory reporting. The latter factor was demonstrated at the Mediation Society session I attended where someone in the audience described a case he’d mediated in which the parties agreed to have a financial institution suspend activity on an account to prevent end runs while the mediation was in progress. An employee, sensing a problem, made an elder abuse report to the police, thereby potentially derailing the mediation. Still, the session served to convince me and others I spoke to afterwards that the approach clearly warrants further exploration. Seems to me that learning to recognize the factors that give rise to financial conflicts could also potentially lead to more rational estate planning and circumvent problems from arising later on.

The Consortium event ended with a presentation by Mary Joy Quinn, director of the San Francisco Superior Court’s Probate Department, describing a pro bono mediation program that she spearheaded, in which judges and commissioners refer cases to specially trained mediators as an alternative to conservatorships.

I’m delighted to add that I’ll be working with Mary Joy and Eileen Goldman again next year on a new project with the court funded by the Borchard Foundation. Working with California’s Administrative Offices of the Court, we’ll be drawing from research, case law, and practice experience to develop working definitions of undue influence that can be used in assessment and policy development.

For more on Fred and Judy, visit their Web sites at www.FrederickHertz.com and www.familymoneyconsultants.com. To learn more about how mediation and other forms of “restorative justice” are being used to prevent elder abuse, click here.

Expanding our Notion of Accountability

A couple weeks ago, I was in the middle of writing a proposal to explore restorative justice approaches to elder abuse when I happened to see the new Pew Center report on incarceration (see Pew Report) that showed that more than one in 100 American adults are behind bars. That’s 1.6 million, the highest rate of any nation in the world. And it gets worse: one in 36 Hispanic and one in 15 adult Black men are incarcerated. Among young Black men, the figure is one in nine. The racial divide extends to women too, with one in 100 Black women aged 35 to 39 incarcerated compared with one in 355 for Whites.

After I got past my initial shock and depression, I went back to work with new resolve, more convinced than ever of the need for new approaches to elder abuse.

Be assured, I’m a huge fan of the police, prosecutors, forensics researchers and everyone else responsible for the enormous strides our field has made in improving prosecution rates in elder abuse cases. And a lot still remains to be done. That’s particularly true, I believe, in the case of financial abuse, where so many predators operate with impunity; some brazenly brag that the risk of getting caught and the flimsy penalties and sentences they face are simply the cost of doing business. But, as our field embraces criminal justice approaches, we ought be careful. We need to be sure, for example, that the approaches we advocate for are fair and appropriate. We need to guard against becoming so focused on prosecution that it overshadows other promising approaches. We need alternatives that we can divert offenders to when it’s appropriate. And, we need to be watchful and honest about unintended consequences.

It used to be that prosecutions were rare and few police and prosecutors received training. Things started to change quickly in the 90s with the infusion of domestic violence theory, policy, and practice into our field. In addition to offering such promising new interventions as support groups, safety planning, shelters, and orders of protection, it prompted us to focus on the criminal justice system. A significant amount of federal and state dollars now go for training police and prosecutors, for advancing forensics research, and for letting the public know that abuse is a crime.

All well and good. We’ve “criminalized” elder abuse under the banner of accountability, and clearly, it’s one way to achieve accountability. But accountability goes beyond punishing offenders. It requires that perpetrators acknowledge the harm they’ve caused and make amends to their victims and communities. If we’re serious about accountability, it’s time we stopped shrugging our shoulders at the fact that few perpetrators pay restitution, assuming that nothing can be done about it. It’s time to hold ourselves and “the system” accountable for ensuring that the needs of victims aren’t overlooked. It seems to me that the resources now directed toward the criminal justice system far exceed those devoted to restitution recovery, victim compensation, advocacy, preventative services, legal assistance, or social services aimed at healing, protecting, and empowering. Or seeing to it that offenders with mental health problems get the services they need, which is what so many victims want.

It’s my belief in the need to expand our view of accountability that’s led me to explore restorative justice (RJ). RJ isn’t a single intervention, but rather multiple techniques like victim-offender mediation in which victims confront their abusers in safe settings to tell them how they were affected, seek answers, and negotiate remuneration. Although I’m not aware of traditional victim-offender mediation being used in elder abuse, innovative programs and courts across the country are using mediation to resolve conflicts among family caregivers, as an alternative to guardianship, and to reach settlements in abuse cases, with promising results. Another RJ approach, family group conferencing (or talking circles), is currently being explored by several Indian tribes in the US and a mainstream program in Canada. The groups draw upon the potent power of family relationships and support networks to support the vulnerable, motivate or pressure members to get help for mental health problems, negotiate settlements, and support caregivers sanction offenders. For more on RJ, see the page on my Web site Restorative Justice Approaches to Elder Abuse Prevention.

RJ advocates contend that approaches like these may, in some respects, ensure greater accountability than the traditional criminal justice system. For example, in the traditional system, offenders plead innocent, leaving it up to prosecutors to prove their guilt. In contrast, RJ creates incentives for offenders to step up, admit what they’ve done, and make amends. In the traditional system, perpetrators often don’t hear the full extent of the pain, loss, and suffering they’ve caused, and victims don’t have the satisfaction of been heard. Police dramas would have us believe that the only outcome that satisfies victims is when their offenders receive harsh punishments. But victim advocates tell us that having a voice in the process, being compensated, hearing perpetrators’ explanations and expressions of remorse, and negotiating solutions can be both healing and empowering.

There are other reasons to be cautious about criminal justice approaches to elder abuse. In previous postings I’ve discussed the unintended consequences of some criminal justice approaches on certain victims. For example, mandatory arrest laws, which many states have adopted to combat domestic violence, have resulted in dramatic increases in the arrest of women as “mutual combatants” despite the fact that most women are acting in self-defense. That’s because the laws don’t typically distinguish between one-time and chronic violence, or between minor and severe violence, This is particularly true for poor women, women of color, and undocumented immigrant women. Makes me wonder if that’s reflected in the PEW findings.

It was while working on a project for the National Indian Council on Aging (NICOA) that I first got interested in RJ, as several tribes had programs. As former NICOA director Dave Baldridge put it, “Restorative justice was once an unspoken, widely-accepted aspect of American Indian tribal cultures. As Native communities were family-based and relationship oriented rather than relying on rules of law, many Native people—elders most of all--still adhere to restorative justice concepts.”

Again, I’m not knocking criminal justice approaches. I simply think we need to expand our way of thinking about accountability and focus attention and resources on approaches that empower, compensate, and restore as well as punish. RJ holds promise for doing that. I’ll keep you posted on my proposal.

Comings, Goings, and Congratulations

Congratulations and heartfelt best wishes to Mary Twomey, who will be leaving her job as Director of the San Francisco Consortium for Elder Abuse Prevention at the Institute on Aging to become co-director, along with Laura Mosqueda, and northern California liaison of U.C. Irvine's Center of Excellence in Elder Abuse and Neglect.

Obviously I've had a strong interest in Mary's work since she took over as the Consortium's director when I left in 2000. I think it's only natural, when someone takes over a job you've had for 16 years, to have a certain amount of ambivalence. Of course you want them to do well and carry on your work. But there's also a nagging fear that they'll discover your skeletons or shortcomings; or worse, outshine you.

But watching Mary take the Consortium in new and exciting directions has been wonderful to watch. She's led the program with grace, skill, and panache. Under her guidance and with the help of IOA staffers Dana Smith, Melissa Anderson, and Tessa ten Tusscher, the Consortium has made remarkable strides. What was a fledgling support group and counseling program when I left is now an integral component of the IOA's geriatric psychology training program, which means that every participant in the program receives training in working with elder abuse victims. They currently have 20 marriage and family therapist interns, practicum students, and a post-doc. Plans are underway to secure funding for an elder abuse forensic center, which will be modeled on UC Irvine's. The Irvine Center is staffed by legal, medical, social services, and law enforcement professionals who review abuse cases, develop care plans, conduct in-home medical and mental status evaluations and evidentiary investigations, and provide training and consultation.

Mary's new job will involve working with other projects funded by the Archstone Foundation around the state, overseeing technical assistance to grantees, and helping the center provide leadership in statewide advocacy.

Of course I'm looking forward to seeing who fills "our" job next and will keep you posted.

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Congratulations too to Lori Jervis, Assistant professor of American Indian and Alaska Native Programs at the University of Colorado, Denver, for being awarded a grant from the National Institute on Aging for a pilot study on the mistreatment of American Indian and Alaska Native (AI/AN) elders. The goal is to lay the groundwork for studying the prevalence/incidence of mistreatment among rural and urban Native elders by exploring alternative methods and proposing recommendations for future research that are both scientific and "grounded in local realities."

They'll be assembling two groups to guide the project: 1) an interdisciplinary team of researchers with expertise in AI/AN communities and a track record in conducting epidemiological studies with the population, and 2) a culturally and geographically diverse panel of Community Experts with backgrounds in Native elder advocacy and abuse prevention. I'm pleased to have been asked to serve on the latter.

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Earlier this week, the Administration on Aging announced grants to operate the National Center for Elder Abuse. The National Committee for the Prevention of Elder Abuse will oversee NCEA's multidisciplinary efforts, the National Adult Protective Services Association will oversee training, and the University of Delaware will serve as co-manager.

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As many of you know, I've had a strong interest in restorative justice approaches to preventing elder abuse. So, I was intrigued and pleased to learn that Arlene Groh, Elder Abuse Restorative Justice Resource Consultant for the Elder Abuse Response Team in Waterloo, Ontario, spent the Second World Elder Abuse Awareness Day in Busan, Korea, giving a workshop on her work. Participants came from all over the country and included elders, academics, experts in family violence, and representative from Elder Abuse counseling centers across the country. The event was hosted by the Korean Information Network for the Prevention of Elder Abuse (KINPEA) in collaboration with the administration of Busan and the Metropolitan City National Health Insurance Corporation, which is playing a leading role in creating a long-term care insurance service in Korea.

Arlene's visit was at the invitation of Dr. Dong Hee Han, who has a doctorate in elder abuse and is attempting to make changes in how elder abuse is addressed in Korea by looking at a new definition of filial piety, connecting isolated seniors with "cyberspace families," and working with elderly prostitutes.

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.

RJ draws from traditional Indian justice traditions. Rather than treating crime as a matter of guilt and innocence, it frames it as harm that affects not just victims, but offenders and the broader community. It assumes that certain conflicts, particularly ones involving families, are best resolved by repairing and improving relationships and controlling risk, rather than simply punishing offenders. It offers victims, abusers, and the community opportunities to come together to consider why crimes happened, what can be done to repair the harm, and how to prevent future harm. It also holds that society has an obligation to help offenders make amends and reintegrate them into the community. RJ isn’t a single technique but a variety of alternatives ranging from mediation to peacemaking courts to family conferences, which can be carried out with court involvement, under court supervision, or as an alternative to court intervention.

Critics see RJ as “light on crime,” offender focused, and dangerous to victims. Anti-DV advocates hold that mediation is impossible between victims and abusers because of imbalances in power. Others claim that involving victims’ and offenders’ friends, support systems, and communities, which is done in conferencing, won’t work because these networks may actually support, rather than discourage, DV.

Supporters counter that RJ often demands accountability where the traditional system doesn’t, particularly in cases involving first time or minor offenders who typically deny their guilt, get off with warnings, and never assume responsibility for what they’ve done. One of the speakers, Donna Coker, a nationally known expert in domestic violence, is among those who suggest that RJ approaches can and should be added to the arsenal of anti-DV tools. She’s written extensively on the limitations of criminal justice approaches to DV, including the “unintended consequences” of mandatory arrest policies. Because the laws fail to distinguish between one-time versus chronic and minor versus severe violence, they’ve resulted in dramatic increases in arrests of women, particularly women of color, as “mutual combatants.” This is in spite of research suggesting that most are acting in self-defense. Recent studies on recidivism also contradict early research that showed that arresting offenders reduced DV—the newer studies suggest that arrest reduces violence in some cases but increases it in others.

Coker and others urge caution in using RJ with DV and emphasize the need to ensure that women are safe and not being overtly or covertly coerced to participate. Among the advantages of RJ are that it offers victims a greater voice in the process, can potentially disrupt social and family support for battering, and provides women with opportunities to engage their families and friends in confronting their abusers.

What does all this have to do with elder abuse? I don’t really know. But the fact that so many elderly victims refuse to initiate punitive action against abusive family members for fear of loosing their relationships makes me think that RJ deserves our attention. I’ve been following the few elder abuse programs I’m aware of that use RJ and was pleased to hear that the director of one, Arlene Groh of Community Care Access Centre of Waterloo Region Ontario, will be presenting at the NAPSA conference in San Francisco in September. Another exciting model project was conducted by the Jamestown S’klallum tribe in Washington state, which uses family conferencing to address conflict in caregiving systems.

We’ve made huge strides in improving the criminal justice system’s response to elder abuse in recent years, which is critical. I don’t see RJ as a threat but rather, as providing opportunities for getting more juice out of the criminal justice system by supplementing court authority with the power of family and community relationships. While the research is sparse, there’s evidence that RJ approaches increase restitution rates and reduce recidivism. Victims’ satisfaction rates are higher. The Miami conference was billed as the “first annual” and I strongly urge anyone who’s interested in expanding the scope and focus of elder abuse prevention to watch for the next one.