The Difference Between Mediation and Litigation in Elder Abuse Claims

It is a hope that society is progressing into a kinder and more gentler population. There is some evidence of this progression with laws and legislation that have been enacted to protect the welfare of people.

The World Health Organization gave a face to elderly abuse and brought the issue to the attention of the world in 2002. Since that time, elder abuse claims have been on the rise.

What Is Elder Abuse?

The World Health Organization defined elderly abuse when it brought the issues to the attention of the world. This type of abuse occurs when an act is repeated, or a lack of action is taken, by a person in a relationship with the elderly, where there is an expectation of trust. This action or lack of action must be abusive in nature for an elder abuse claim to be justified.

Physical: Any physical action that results in a physical injury or harm.

Psychological or Emotional: Any action or behavior that results in emotional distress or harm.

Financial: Any exploration or misappropriation of financial resources.

Sexual: Any forced sexual conduct or conversations.

Neglect: Any deprivation of necessary items or care, like food, clothing, heating, or medical attention. This can get confused with abandonment. However, it is necessary to note that neglect means that one is aware of the condition of the elderly person. Neglect can be passive or active, but neither is the same as abandonment.

Abandonment: Desertion of an elderly person with the intention of leaving them unattended. The duration of time needed to claim abandonment is equal to the amount of time it takes for the victim to become endangered, for any reason.

Self-Neglect: Incapability of elderly person to care for themselves. This type of self-neglect must be involuntary and due to an elderly person’s mental or physical incapacity. It is not self- neglect abuse if the elderly person is making a coherent and conscious choice to neglect his or her personal needs.

When defining elderly abuse, the abuser is of great importance. Abusers of the elderly are often known to the victim. Family members, spouses, and healthcare professionals are possible culprits.

A large number of elderly abuse cases are extended cases of domestic abuse, where the domestic abuse started much earlier in life. Much abuse takes place in nursing homes, which could result in a nursing home abuse or neglect claim.

Mitigation Vs. Litigation

Elder abuse claims are on the rise as the population continues to age. With such a surge in cases, elder care professionals and establishments are turning to mitigation to prevent lawsuits from going to court. There are several differences in these two practices.

Mitigation uses a neutral third party to help two parties come to an accordance without a trial. The decision can be either binding or non-binding.

A binding agreement is usually made in arbitration. Mitigation usually results in a non-binding agreement. The results of mediation, as well as all the discussions held during mediation, are confidential and cannot be used in a court of law if the matter still goes to trial. The fact that mediation is non-binding means that if an accordance is not found, the matter may still go to trial.

Litigation involves the use of a judge or even a jury to hear both party’s arguments and make a decision based on the facts. Unlike mediation, neither party has any say in the outcome or judgment. The judgment is legally binding.

The biggest difference, especially to the defendant, is that neither the facts nor the determination of the case is confidential. The public is privy to all the facts surrounding the elder abuse case, as well as the details of the judgment. This can be a public relations nightmare for professionals and establishments accused of elderly abuse.

If you are in the unfortunate circumstance of filing an elder abuse case, understand the power in both litigation and mitigation. Mitigation costs less and is a quicker process. It is a good starting point that can always turn into litigation if needed.