January 01, 2015

ADR: A Force for Good in Elder Law

Charles R. Keeton

This issue of Experience comes to you with a sense of mission accomplished. When Charles Keeton proposed the idea of an issue focusing on the various aspects of the application of mediation in the context of elder law, Editorial Board members were enthusiastic. We were especially pleased that Charley volunteered to be the issue editor.

Over the following months, Charley has worked to bring together outstanding authors with new and challenging approaches to the growing and changing field of elder law mediation. Charley has faced some real challenges of his own over these past months, having to spend time dealing with health issues. But he never gave up on this issue, and so we express our gratitude for his commitment and congratulate him and his authors on an outstanding mission accomplished.

There is much to be learned in this issue. The ideas presented here note the opportunities for senior lawyers in the field of elder law mediation, as well as an approach that is so persuasively described by author Louise Phipps Senft as “transformative.”

The Editorial Board offers sincere thanks to all who have made this issue of Experience possible, but most especially to our incredibly gifted staff editor, Lisa Comforty.

—Malinda C. Allen

Editorial Board Chair

Experience magazine

 

The editors of Experience magazine take both pride and pleasure in this Fall/Winter issue. Our authors focus on a broad range of questions affecting mediation as a tool in elder law. And we define “elder law” broadly, essentially meaning every aspect of law that affects the elderly and those who serve them.

We also present not only tight, thoughtful legal analysis, but also evocative musings of a poet and essayist, Frederick Smock of Bellarmine University in Louisville. In “Love in a Time of Dementia,” he shares with us life and love as a caregiver to a loved one with advanced Alzheimer’s. Elder care is fraught with human concerns as well as legal issues.

Elder law clients face those legal and human issues, often feeling as if their lives are sometimes like that of Frodo Baggins, the small Hobbit protagonist of J.R.R. Tolkiens’ Lord of the Rings, who finds himself besieged with epic trials and tribulations. Elder law practitioners, whether male or female, sometimes feel as if their clients view them as the wizened yet wise wizard Gandalf, who guides Frodo through these ordeals. Perhaps my reverie is overblown, but I believe that the fine legal analysis in our articles holds the potential to give you Gandalf-like powers.

The essence of mediation is to assist the parties in resolving one or more conflicts. Indeed, often the first task of the mediator is to lead the parties in a dialogue just to define the conflict. The parties might have inherited the conflict from their forebears, or the conflict(s) might have become ingrained for decades or even generations. Where is Gandalf when you need him? Cases of longstanding and deep-rooted conflict often involve the “fireworks” that Sue Bronson and Linda Fieldstone deal with in their excellent article in this issue, “From Friction to Fireworks to Focus: Eldercaring Coordination Sheds Light in High-Conflict Cases.”

Elder law in many instances involves both legal and personal issues. Catherine Seal and Michael Kirtland give us an excellent and thorough discussion of those issues in “Using Mediation in Guardianship Litigation,” as do Ned Madeira and Joe Sullivan in their discussion of serving seniors with interviewee Karen Buck, executive director of Pennsylvania’s SeniorLAW Center.

As Erica Wood discusses in her COLA Column on “ADR and Aging,” mediation in the context of elder law may or may not be the right tool to use, since elder law raises issues different from those arising in cases involving younger people. Eleanor Crosby Lanier addresses the objectives and skills desirable in elder law mediators in “First Do No Harm: Why Mediator Competency Matters in Eldercare Cases.”

In “Transformative Mediation: Transforming the Adversarial Ethic,” Louise Senft provides us a rich overview of mediation and its risks and rewards, as well as a discussion of her development of the most innovative and disruptive idea in mediation today. Of course, I use “disruptive” in the econometric sense: companies may overtake a market through innovative operations or products, and that is what mediation may do for elder law.

Louise has disrupted the elder law arena by superimposing upon it the field of mediation. She has championed the idea that the adversarial method of seeking truth should be modified significantly in mediations. Indeed, the transformative approach to mediation puts the parties, rather than the mediators or parties’ representatives, in charge of their mediation. Only if they choose to reach agreement, one not driven by mediators, may the purported “agreement” go forward. Conflict resolution suffers when the parties cannot or will not speak to one another in person and in control of their emotions. Mediation is more effective if the parties are required to speak directly to one another and take personal responsibility for resolving conflict—or not, as the parties determine.

Like Louise, I also came to believe that mediations dependent on lawyering skills have become far too combative. They tend to draw litigators to ADR, and that has depressed the use of mediation, which has been especially unfortunate for seniors living on fixed incomes within the confines of a budget.

Thank you to the authors for their fine work, and to you, the readers. We hope that you enjoy this issue of Experience and take from it valuable tools for your practice and your own lives.

Charles R. Keeton

Charles R. Keeton, recently retired, specialized in commercial law at Frost Brown Todd LLC and its predecessors. Over the years, he actively participated in the Louisville, Kentucky, firm’s growth from 25 to nearly 500 lawyers. He is currently writing short fiction for publication, and he also hopes to work with Louisville nonprofit organizations and to provide mediation services for fees based on parties’ ability to pay.

Malinda C. Allen

Malinda C. Allen is chair of the Experience Editorial Board, vice-chair of the Editorial Committee of The Voice of Experience newsletter, and a past SLD Council member. She is a solo practitioner in Cashiers, North Carolina, where she focuses on elder law matters.