If you are at the point of looking for an elder or probate mediator for a dispute that relates to:
• Health or medical care decisions
• Housing Concerns, Assisted Living or Long-Term Care
• Powers of Attorney – Health Care and Financial
• Dementia or other cognitive, physical or emotional decline
• Advance Directives and End-of-Life Decisions
• Respite care and Support for Caregivers
• Independence and self-determination vs. safety issues
• Suspected abuse, neglect or self-neglect
If you are in the midst of a legal proceeding and are exploring alternatives, either with or without legal counsel, such as:
• Estate or Trust administration and Distribution conflicts
• Guardianship or Conservatorship proceedings in probate court
You may be interested in speaking to an elder/probate mediator about resolving your dispute in mediation. The major benefits of mediation include:
• A confidential and safe setting to discuss private family issues
• Ability to retain control of the outcome of the process, as opposed to litigation – where a judge decides
• Creative outcomes can be crafted after brainstorming and evaluating various options with a mediator
• Participation of family members and others in mediation sessions
• Mediation is less expensive and much faster than going to court
But one of the concerns you may have is about what to “look for” in an elder/probate mediator. First a detail – I refer to this type of mediation as “elder/probate” or “elder and probate” as distinguished from “elder and guardianship” which is more common in other parts of the country, because the term “elder and probate” includes guardianship, conservatorship, estate and trust administration. In January 2012, the Canadian Centre for Elder Law (British Columbia) published a 195 page report entitled “Elder and Guardianship Mediation.” Unfortunately, it appears that the report is no longer available online as it was in January 2012. I liked the report because it is carefully researched (599 footnotes) and has useful appendices include reference materials.
What I find helpful from a consumer’s perspective are the parts of the report that zero in on ethical issues elder and probate mediators face as well as some of the standards of practice recognized by mediation organizations. These are particularly useful in Colorado, because the State of Colorado does not certify, license or otherwise regulate mediators.
It gives a background of mediation’s core ethical standards: voluntariness of participation (this notwithstanding the fact that a judge may order parties to mediation); confidentiality of process; and impartiality and neutrality of the mediator. The universe of elder law issues which are appropriate for mediation are outlined above, but generally concern most types of inter-generational or multigenerational family disputes. These include any matters which are referred to mediation by a judge in probate court.
According to the report (at 36-48) some ethical issues that elder/probate mediators and participants may encounter include:
• Power imbalances among disputing parties that may need to be identified before mediation is determined to be appropriate
• Mediator’s ability to remain impartial (this is important in mediation because it does not have the “checks and balances” of procedural fairness that is built into litigation process)
• Self-determination and capacity to participate in mediation (here an elder adult may or may not be present at the mediation and may be supported by another person)
• Accommodation of participants and ability to support parties’ participation in process
• Confidentiality – this is one of the key benefits of mediation, and in a multi-party mediation or where health care or support professionals may be involved, this can be challenging
• Suspected abuse or neglect – keep in mind that Colorado, unlike most states, does not have a mandatory elder abuse reporting statute – this issue in the mediation context is controversial and should be handled with care
• Mediator competence – as stated above, Colorado doesn’t certify or license mediators, so this can be challenging to identify what “mediator competence” looks like in the elder/probate context. Helpful here is the ACR Section on Elder Decision-Making & Conflict Resolution’s “Elder Care and Elder Family Decision Making Mediation Training Objectives” from 2011, available here
This information is provided as a number of suggested questions to ask when you are interviewing a mediator. Feel free to ask questions!
©Barbara Cashman, LLC www.DenverElderLaw.org