Pat's Article: "What is elder mediation?"

What do we mean by the term “elder mediation”? Elder mediation, like elder law, is defined by
the client to be served.

Mediation is a voluntary, self-determined process, in which the neutral facilitator works with all
the parties to assist them in arriving at their own decisions about how to resolve the issues.
The mediator neither takes sides nor judges who is right or wrong, and does not give advice.
Discussions are confidential and held in a private, safe setting. Any agreement reached must
be acceptable to all participants.

Elder mediation is mediation of any conflict that involves elders, their family members, or
others in their lives. The individual who first contacts the mediator may be, but often is not, the
elder involved.

Mediation occurs in a variety of settings and conflicts that involve elders. Sometimes this
mediation is given a name that defines the specific subject matter of the mediation. Examples
include “adult guardianship mediation,” “family caregiver mediation,” “shared decision making
services,” “probate mediation,” ”landlord-tenant mediation,” and “neighborhood mediation.

Situations appropriate for elder mediation

In a holistic approach similar to that of the elder law attorney, the elder mediator is familiar with
and capable of dealing with a variety of issues, including:

 Housing/living arrangements
 Caregiving
 Healthcare planning
 Financial management
 Estate planning & probate matters
 Medical treatment
 Guardianship/conservatorship
 Consumer issues
 Social life and activities
 Spirituality and aging
 Ongoing relationships

Elder mediation practitioners are knowledgeable in the field of aging

Elder mediation practitioners are professionals familiar with the aging process and the issues
involved. They understand that not all people experience decreased mental capacity as they
age. Mediators are connected with the network of local resources and service providers
available to elders in the community and have access to the latest updates in the aging field.
They are familiar with elder abuse concerns and report new allegations of elder abuse to the
authorities for investigation. Mediation would not occur between an elder and another person
if elder abuse has been substantiated. Self-neglect does not disqualify a case for mediation.

The elder participates in the mediation

Mediators have an obligation to implement all accommodations that allow elders to participate
to the fullest degree possible. This sometimes requires the elder to be represented by an
attorney or other advocate. The Center for Social Gerontology in Ann Arbor, Michigan, has
devised and tested a decision-making tool that is helpful in determining when and to what
extent an elder can participate. More information is available on its Web site at www.tcsg.org.

Elder mediation complements the practice of elder law

Elder mediation is not a substitute for legal advice. Rather, it is complementary to the practice
of elder law. Only the court can provide findings of fact or determination of legal capacity.
Frequently, however, the conflicts that impede the legal work you are doing for your client
involve issues the law does not address. Mediation can bring these underlying concerns to
the surface as the needs and interests of those involved in the conflict are identified. In this
time of state budget cuts and fewer court and judicial resources, elder mediation can be a
particularly cost-effective alternative to lengthy litigation or repeated court hearings for
ongoing disputes. A decision to refer for elder mediation leaves a law firm more time to
perform the legal work it does best.

Elder mediation can be used throughout the course of an attorney’s work with his or her client.
It can precede consultation with an attorney when family members are, for example, arguing
over a parent’s care plan or finances. It can be interspersed with a client’s visits to his or her
attorney. Attorneys may be consulted during a mediation and, if a written agreement is
reached, each participant is advised to consult an attorney before signing. Attorneys often
participate in mediation, representing the elder or another participant or serving as legal
advisors. Although elder mediation is most effective when it occurs early in a dispute, it is
never too late to give it a try.

Benefits of elder mediation

Elder mediation benefits elders, their families, attorneys, and others in a number of unique
ways.

Elder mediation provides an opportunity to explore, in a confidential and safe environment,
creative win-win solutions that address a broad range of decisions and conflicts that affect an
elder’s life. Agreement is not reached unless it meets the needs of all participants—elders
(and/or their representatives), family members, caregivers, and other appropriate support
persons.

Since the elder is often able to participate in mediation, either directly or with the assistance of
an attorney or other representative, the elder’s dignity is maintained by having a voice in the
life choices that are made.

Elder mediation provides an opportunity for elders to talk frankly with family members about
values they hold and risks they are or are not willing to take. The elder can acknowledge his
or her needs for assistance during mediation without fearing that it will lead to a judge’s ruling
of incapacity.

If capacity is in question, elder mediation is particularly effective in exploring the least
restrictive forms of, or alternatives to, appointment of a fiduciary. If an elder’s defense against
a finding of incapacity is questionable, or a client’s support for a petition for appointment of a
fiduciary is somewhat weak, mediation may provide more options than a hearing before a
judge.

The mediation process can help preserve, restore, or even improve relationships. The
process provides a non-adversarial model of communication with which to approach future
disputes.

Mediation can provide elder law attorneys with a resource to deal effectively with underlying
issues the legal system does not, e.g., intangible values, family history and dynamics, issues
of autonomy and safety, interpersonal conflict, quality-of-life choices, etc.

Elder mediation is relatively new

Neither the legal profession nor the public at large has as yet fully recognized the value of
elder mediation. A Portland elder law attorney shared his perspective with me that elder
mediation is today at the stage of development where elder law was fifteen years ago and
private geriatric care management was twenty years ago.

As more attorneys who serve elders understand how this new area of mediation might be just
the key to moving a complex case forward, professionals in both fields can communicate to
the public the values and benefits of elder mediation.

The author very much appreciates the contributions to this article by fellow elder mediation
practitioners Holly Wells and Judith A Chambliss.
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Pat E. Medford, of Elder Mediation Services in Portland, is a trained, experienced professional
who provides mediation and conflict resolution services to people age 50 and over and to
families and others involved with elders, either directly or indirectly. Ms. Medford has practiced
elder mediation since 1997 and has mediated Multnomah County small claims and landlord-
tenant cases since 1998. She is a member of the Oregon Mediation Association, and Oregon
Gerontological Association, and is an associate member of the Elder Law and the Estate
Planning & Administration Sections of the Oregon State Bar. She served on the Portland-
Multnomah Commission on Aging, and she managed the Elders in Action Ombudsman for
Victims of Elder Abuse program. She can be reached at 503.233.9033 or
medfordem@prodigy.net.