Mediation in Guardianship Proceedings for the Elderly: An Australian Perspective

Abstract

Recognition of the benefits that mediation offers to litigants and to the court and tribunal systems has led to formal recognition and institutionalization of the process in Australia, Canada, the USA and many other countries. In many instances, these benefits include flexibility of process, informality, a more conciliatory approach to dispute resolution and reduced costs to parties. Some of these benefits, when compared to more traditional and adversarial court processes, have also flowed from the introduction of tribunals in many jurisdictions, including guardianship. Guardianship proceedings in Australia are by tribunals, not courts, and they use flexible procedures, are generally timely, informal, non-adversial and rarely involve extensive legal costs. In applications made pursuant to guardianship legislation in Australia, guardianship tribunals are required to consider the wishes of the person about whom a guardianship application is made, find the outcome that is the least restrictive of that person’s freedom of decision or action and make decisions that are in the best interests of that person. In this tribunal environment a number of questions arise regarding the use of mediation in guardianship proceedings. Firstly, if the process is already efficacious and inexpensive, do the usual inducements for using mediation arise? Secondly, effective mediation requires that one party is not at a significant disadvantage to another during the mediation process. What measures, if any, are in place to ensure that an elderly person with a disability is able to participate in mediation in a meaningful way? Thirdly, given the legislative principles to be applied by guardianship tribunals once an application is before them, is it ever appropriate that an application be resolved by consensus between the parties and if so, when? This article addresses these questions and other issues that need to be addressed if mediation is to play a larger role in resolving guardianship issues.