What is the “Promise” of Elder Mediation?

The New York Times has a column entitled “The New Old Age” and in a post from today by Paula Span entitled “Care by Consensus” some of the challenges of getting a workable plan for caring for an elder who has no family members to assist in the process.  Many of us deal with these issues with siblings, children, aunts, uncles and neighbors involved.  Sometimes this involves effectively sharing  the burden of caring for an again or frail family member, and others it looks more like a power struggle, outright warfare or a means of unearthing long-standing ill feelings of “mommy always loved you best.”  This is discussed in a March 13, 2012, article in Forbes by Carolyn Rosenblatt titled “Aging Parents, Embattled Kids: Can You Find Pain Relief?” Read it here.

As an elder and probate mediator, I found the ABA’s December 2010 Bifocal issue’s article by Ellie Crosby Lanier, “What Is Quality in Elder Care Mediation and Why Should Elder Law Advocates Care?” a bit more insightful as to available options.

Elder/Probate mediation requires a special set of skills. Many of us who are professionally trained mediators believe in the promise of this approach to conflict resolution, even though adoption and endorsement of elder/probate mediation is slow in coming.  Elder mediation is used in other countries, and perhaps the most informative and exhaustive work about its progress has been put together by The Center for Social Gerontology.  You can find the voluminous document here.

What kinds of disputes is mediation particularly well-suited in the elder/probate context?

  • Decisions about care management/ living arrangements
  • Productively managing independence (driving, autonomy)
  • Concerns about loss of financial control and responsibility
  • Adult children and “fairness” among siblings, expectation of heirship
  • Facilitating capacity and managing incapacity
  • Trusts and estates disputes
  • Medical decision making and responsibility

Just to name a few.  These disputes don’t need to simmer before they boil.  But sometimes a health crisis or an elder’s failure to plan can bring certain latent situations to active conflict.  Often the person who suffers most as a result is the elder, because they may (or may not ) be aware of the conflict, and its potential to wreak havoc.

I think part of an attorney’s informed consent is an exploration of the options – from the interest-based peace-making options to the no-holds-barred litigation scenario.  The challenge is that many of my colleagues know little about the peacemaking or mediation option, so it is a legitimate question to ask “what it would look like,” along with “how do I find a good elder mediator?” Read “A Referee for Family Disputes,” by Anne Tergesen, from the Feb. 5, 2011, Wall Street Journal. Lots of folks have commented on it. Check it out.