In a petition for guardianship and conservatorship over their mother, Mildred, two daughters allege that the durable power of attorney and patient advocate designation their mother signed a year ago is not legally valid because she signed them under undue influence or did not have the legal capacity and understanding to sign at the time. The mother's long-term companion, the donee of the powers, claims the petition should be dismissed, saying that the authority granted in the documents makes court supervision unnecessary, or argues in the alternative that he should be named as fiduciary. Everyone recognizes that Mildred now meets the definition of an incapacitated individual. The legal issue presented to the court is the validity of the documents: the capacity of Mildred a year ago and the circumstances of the signing. The real issue between the parties, however, is who will control Mildred's life and property. Each side is afraid that the other will restrict access to Mildred, act in ways contrary to Mildred’s best interests, and use Mildred’s property improperly. The parties’ attorneys suggest mediation, to focus on Mildred’s needs, explore the interests of the parties, and find ways to assure that Mildred’s resources are used appropriately for her care.
Situations like this, along with other, more complex scenarios, are commonplace for court staff, attorneys, and other professional service and care providers. Underlying relationship issues or dynamics are often driving the legal action, and in recent years, courts and professionals have discovered that mediation can be a very practical, effective way to resolve disputes about caring for elderly family members.
The presence of a trained neutral “outsider” with no stake in the outcome is usually effective in diffusing anger and hostility and focusing the parties on collaborative problem-solving. The privacy and confidentiality of the mediation process appeals to many families. In addition, family members usually appreciate having the opportunity to make their own decisions, as opposed to giving over this power to a judge who knows little or nothing about the family dynamics, interests, and needs and must decide the case on the legal merits alone. The mediation process is particularly useful when the claims involve ongoing relationships between the parties, which is so often the case in family disputes.
Almost any case involving an older person presents issues that can be mediated, including:
- Health care decisions, including end-of-life planning
- Medicare/Medicaid and beneficiary questions
- Financial decisions and planning, including family-owned business matters
- Living arrangements, including long-term care
- Responsibility for decision making
- Personal care, household care, and dwelling maintenance
- Safety, risk-taking, and autonomy
- Family relationships and dynamics (new or long-standing)
- Lifestyle choices of older adults (including divorce, companions, new marriages, and LGBT issues)
- Needs of caregivers and other family members
- Needs of grandparents caring for grandchildren
- Probate: guardianship, conservatorship, decedent estate, wills, and trust matters
- Consumer issues
Social workers and other advocates for the elderly developed several of the early elder mediation programs. Projects in the early 1990s included mediation of conflicts in nursing homes and elder housing facilities and were largely developed by professionals already active in elder advocacy or service roles, for example in the ABA Commission on Law and Aging.
Family caregiving mediation first arose in the context of adult guardianship. During the 1980s and early 1990s, almost every state in the United States reformed its guardianship laws, largely because of lobbying by advocates for the elderly. These reforms were designed to protect the rights of persons who were alleged to need a guardian, including new functional definitions of incapacity. The reforms shifted the burden of proof and level of evidence needed to demonstrate incapacity and addressed the rights of the person alleged to need a guardian to have an attorney, attend the hearing and cross-examine witnesses, and receive adequate notice.
Some advocates recognized that while these procedural protections and civil rights were important and necessary in a court proceeding, an adversarial process was not always the best way to address family conflicts involving care. The win-lose atmosphere of the court often escalated, rather than resolved, family conflicts, and often did not result in solutions that addressed the underlying problems. In addition, the court process, rather than empowering participants, often overwhelmed them with bureaucracy and legalisms.
In the early 1990s, the Center for Social Gerontology (TCSG) developed and studied adult guardianship mediation, first in a small local project in Ann Arbor, Michigan, and then around the country in several programs, using private-sector mediators, court-based programs, and community mediation programs. Early in its development, the model shifted from training elder advocates as mediators to training mediators in the additional information and skills required to mediate these cases effectively. Mediators needed training in relevant legal topics, as well as in ways to work effectively with incapacitated and vulnerable individuals, deal with confidentiality issues, mediate with multiple parties, address concerns about elder abuse, understand family dynamics, and deal with myriad other issues unique to elders and families in mediation. Everyone involved needed to understand the limits of mediation (for example, determination of legal incapacity cannot be mediated and must be decided by a court, although mediating parties can agree on who should be appointed as guardian if a person is determined to be incapacitated and in need of a guardian). Parties who used mediation to address conflicts arising in elder care settings were likely to reach agreement and be satisfied with the process and its outcome. However, the volume of cases actually mediated was small.
Mediators and aging-services providers soon recognized that mediation could be a valuable resource for cases in which families had not filed a court petition, and several mediation programs started to provide this service outside the adult guardianship setting. This presented new challenges: Often not all the parties would agree to participate. To minimize the association with courts or conflict, some mediators tried calling the process a “family meeting” or “shared decision-making.”
By the early 2000s, more mediators were adding “elder mediation” to their practices; articles about elder mediation showed up regularly on dispute resolution practitioner web sites and association periodicals and books. The 2004 ABA “ADR Handbook for Judges” included chapters on adult guardianship and probate cases. In 2009, the Association for Conflict Resolution (ACR) recognized a new Section on Elder Decision-Making & Conflict Resolution, which now has more than 230 members and has created standardized objectives for elder mediation training. At least 15 organizations or individuals now provide elder mediation training, and several law schools offer elder mediation courses or clinics.
Courts in the United States and abroad have increasingly recognized the value of ADR processes for elder care cases. A number of probate courts maintain rosters of private mediators who are available to mediate cases involving guardianship, conservatorship, or estate matters. Several community-based elder mediation programs and court-connected elder dispute resolution programs are ongoing or in the planning stages.
Nevertheless, these programs continue to encounter the same challenge as the early projects: getting parties to the table. Program directors and private mediators report difficulty getting cases and making their services known to stakeholders. Many elder mediation programs have not survived. Programs rise and fall with the introduction or departure of one stakeholder – for example, the retirement or reassignment of a judge who has enthusiastically championed a program.
An Ohio survey on elder mediation found the anticipated growth in the field has not occurred despite the increase in life spans, the aging of the baby boomers, and support from mediators who consider it a promising area of practice. The survey authors identify the lack of awareness of elder mediation on the part of the public and potential referral sources as a significant barrier to growth and conclude that much work needs to be done to elevate recognition and achieve acceptance by stakeholders.
In Minnesota, a student study at the University of St. Thomas School of Law’s Elder Mediation Clinic highlighted a “catch-22” situation whereby many mediators didn’t want to invest in training for only a few cases, and courts, agencies, and consumers didn’t pursue elder mediation because they didn’t know of any trained elder mediators.
Despite these challenges, many elder mediation programs and private mediators around the country and the world have developed innovative initiatives.
One way of getting parties to the table – and of increasing awareness of mediation’s value – is to use the motivation, for both parties and attorneys, that comes from court order or court persuasion. Many of these programs encourage parties to find creative solutions not otherwise available in a court setting.
- Since 2005, the Alaska Court System has mediated adult guardianship and conservatorship cases at every stage of the case.
- Since January 2013, the Probate Division of the Washington, DC, Superior Court, in partnership with the Multi-Door Dispute Resolution Division, has been piloting a one-year elder mediation initiative for the court’s Older Adult and People with Disabilities calendar.
- In Illinois, the Circuit Court of Cook County will soon include mediation in its new Elder Law and Miscellaneous Remedies Division.
Other Models and Processes
In an attempt to meet the needs of clients in ways that the clients find most helpful, mediators are offering other conflict resolution processes and creating innovative categories of cases.
- Restorative and tribal peace practices: A Michigan court is incorporating restorative peacemaking principles in guardianships, conservatorships, or decedent estates. Evidentiary hearings that emphasize open and direct dialogue with the judge; the articulation of guiding principles of respect, responsibility, and relationships; and the continuous reminder that the focus of the process is on the elder individual and his or her needs and desires all lead to increased satisfaction in the result. The Philadelphia Good Shepherd Elder Mediation Program uses Family Group Decision-Making, a restorative dialogue process, to resolve elder disputes.
- Conflict coaching: This process helps individual family members work through their own perspectives on the conflict and develop tools to communicate productively with others.
- Conflict Management Training: Many private mediators offer conflict management training to professionals who serve elders and the developmentally disabled, attorneys, and financial consultants who work with elders and families. The Elder Mediation Program of the Mosaica Center for Consensual Conflict Resolution in Jerusalem has trained management, staff, family members, and residents of assisted living and nursing facilities in basic skills of conflict management with the goal of enabling prevention, early intervention, and successful management of conflicts that inevitably exist in these facilities.
- Eldercaring Coordination: Parenting coordination was developed for use in child custody and related cases, with the idea that all high-conflict families have their own unique characteristics that can make mediation challenging. ACR has developed a task force, comprised of representatives of more than 15 national organizations, and an advisory committee on “Eldercaring Coordination,” which will use parenting coordination as a model to construct a high-conflict resolution option for families in crises and/or involved in guardianship cases.
- Expanding Services: Private-practice elder mediators have added and marketed additional categories of cases and practices to traditional elder mediation services, such as collaborative divorce for elder clients or elder mediation options for the LGBT community.
Partnerships and Networking
In many communities, partnerships have developed between mediators, attorneys, elder services providers, and others to use existing resources in new collaborative ways or create new networks of service. This can be a valuable tool for growth of support and knowledge of mediation in the larger community.
In Los Angeles, the Elder Care Mediation Project, part of the Center for Civic Mediation, has partnered with a pro bono legal entity of elder law attorneys and a nonprofit elder services provider that deals with financial abuse, to provide free elder mediation services. Longevity Connection, an elder services agency in Danvers, Massachusetts, includes mediation, in which private mediators coordinate with the agency as “business affiliates” to provide mediation services, in its menu of services for elders.
Some partnerships focus on providing elder mediation training to other professionals, who, they hope, will gain understanding of mediation’s role in conflicts and be more likely to encourage their clients to use mediation. For example, the Center for Dispute Resolution, part of the University of Missouri’s public affairs mission, has trained academics, teachers, gerontology students, attorneys, counselors, psychologists, and social workers in elder mediation, in order to initiate a program that supports elder mediation. A unique partnership of the Iowa Association of Mediators, selected Area Agencies on Aging around the state, and Iowa’s Department on Aging provided basic and elder mediation training for participants from all three organizations. The organizations are exploring how to integrate mediation into the many services of the aging network, aiming to combine the expertise of advanced mediators and aging specialists in a cross-learning partnership that can collaborate in providing mediation services.
Skilled, dedicated professionals can help parties find paths to agreement on some of the toughest and most emotional issues that families face. The increasing life span of our population suggests that in the years to come, caseloads for courts and community agencies that serve the older population will only increase. As professionals, including skilled mediators, continue to reach out to these groups and their constituents with innovative alternatives, the barriers of consumer acceptance and case referrals could disappear and elder mediation will move from infancy into adolescence.
Elder Dispute Resolution Resources
Alaska Court Program
Mediation & Facilitation Services Manager
Los Angeles, CA
Center for Civic Mediation, Elder Care Mediation Program
Los Angeles, CA
Circuit Court of Cook County Elder Law and Miscellaneous Remedies Division
Honorable Patricia Banks
The Elder Mediation Program of Mosaica Center for Consensual Conflict
Good Shepherd Elder Dispute Services Program
Multi-Door Division of the Superior Court of the District of Columbia
Wise and Healthy Aging
Los Angeles, CA
Susan J. Butterwick is a mediator and trainer who has practiced mediation since 1993 and taught mediation to mediators and university and law students since 2001. She has developed and directed several elder and youth conflict resolution programs for courts and nonprofit agencies. She can be reached at firstname.lastname@example.org.
Susan D. Hartman is a retired mediator and mediation trainer who has practiced and taught elder mediation since 1996. She is the author of the Adult Guardianship Mediation Manual, published by the Center for Social Gerontology. She can be reached at email@example.com.
 Susan J. Butterwick, Penelope A. Hommel & Ingo Keilitz, Ctr. for Social Gerontology, Evaluating Mediation as a Means of Resolving Adult Guardianship Cases, available at http://www.tcsg.org/mediation/SJI_01.pdf.
 Am. Bar Ass’n Section of Dispute Resolution, ADR Handbook for Judges 141 (Donna Stienstra & Susan Yates eds., 2004).
 John Bertschler & Patricia Bertschler, A Survey of Public Awareness of Elder Mediation in Northeast and Central Ohio, Mediate.com (Jan. 2013), http://www.mediate.com/articles/bertschlerJ2.cfm.
 The Honorable Timothy Connors, Washtenaw County Trial Court, Ann Arbor, MI.