Elder law mediation has become a hot topic in recent years. There is a great deal of discussion about what constitutes elder law mediation; whether, when, and how elder law mediation should proceed; what special training elder law mediators need; and what special procedures or protections should be adopted by elder law mediators. There is a good deal of concern about the proper way to conduct elder law mediation and the procedural safeguards that may be required. On the other hand, the potential benefits of elder law mediation are also apparent. Elder law mediation can offer a faster, less expensive, more private way to seek creative outcomes that preserve the well-being of elders, their family members, and their care providers. For most practitioners, elder law mediation is a relatively new concept, and mediators are just beginning to seek out training and to offer their services in this relatively new field of mediation.
What constitutes elder law mediation? Is it simply any mediation that involves at least one participant over a given age? (And what age should that be?) If elder law mediation were defined in this way, it is difficult to see how there could be special concerns or considerations that would apply generally to such mediations. The mere fact that one of the participants in a mediation is 60, or 65, or 70 does not generally change the nature of the dispute resolution process. There must be something more, something that establishes a usefully distinct category known as “elder law mediation.”
In the analogous field of “elder law,” the term does not signify any and all kinds of legal cases involving clients over a certain age. Elder law refers to an array of legal subject areas that tend to be of far greater importance to elders because of factors related to age: e.g., Medicaid benefits, Medicare benefits, retirement benefits, long-term care issues, estate planning, planning for incapacity and end of life, issues related to disability, and also guardianship and conservatorship issues. All of these areas of law also apply to young people in some circumstances, and many elder law attorneys also represent younger clients who are disabled, planning for their elder years, or seeking to assist their elder relatives. Attorneys who may routinely represent elderly clients in other areas of law—e.g., personal injury or small business transactions—are not considered to be practicing elder law.
What distinctive characteristics of such mediations generate the ongoing discussions of best practices in elder law mediation? I argue that “elder law mediation” is mediation involving issues that are of far greater importance to elders because of factors related to age. Specifically, the distinctive field of elder law mediation turns on mediation of issues that define the very shape of an elder’s life, particularly when those issues arise because of the elder’s possibly diminished capacity to make independent decisions. This definition of elder law mediation also encompasses mediation related to similar issues in the lives of disabled younger adults.
Elder law mediation thus involves disputes about where an elder lives, what kind of health care and assistance in daily living the elder receives, who makes important decisions for the elder, how the elder’s financial resources are managed, and with whom the elder maintains important human contacts. The specific kinds of disputes that may be addressed by elder law mediation include disputes with and among care providers and health care professionals over the type and level of care the elder will receive, disputes about whether the elder will remain at home or enter a nursing home or other long-term care facility, disputes between family members over who will assist the elder with managing finances, disputes over how to address possible financial exploitation of the elder, and disputes over whether a guardianship and/or conservatorship is needed to protect the elder’s well-being.
Elder law mediation so defined presents several important concerns that are far less salient in other mediation contexts. First, there are multiple potential barriers to full and equal participation by the elder in the mediation process. For one, there is an imbalance of power inherent in the fact that the stakes for the elder are so uniquely high. The elder is in a situation where the very shape of her life and her ability to determine her own future are at issue. The elder has so much more at stake in the elder law mediation that she may find it difficult to enter into discussion on an equal basis with other participants.
Another characteristic of elder mediation is that the mental capacity of the elder to participate fully in the mediation is virtually always potentially at issue. Concern about the elder’s ability to satisfactorily make independent decisions and manage his own life is one of the defining characteristics of elder law mediation. Thus, the mediator in an elder law mediation must be sensitive to both the perception and the reality of diminished cognitive capacity on the part of the elder.
In some situations, the elder may not be able to understand and participate in the mediation process. In those cases, the elder law mediator must have the training and skill to identify the problem and to determine how to deal with it. Will supported decision making be possible, and if so, who can provide such support? Or, is it impossible for the case to be mediated because of the inability of a key party to participate? For this reason, among others, many leaders in the elder law mediation field have insisted that best practice standards require that the elder must be represented in elder law mediation, to ensure that she is able to participate equally.
In addition to concerns about the cognitive ability of elders to participate in elder law mediation, serious attention must be given to the accommodation of physical disabilities. Most mediators are aware, in theory, of the need to accommodate physically disabled parties. However, many mediators are not truly prepared and equipped to fully carry out such accommodation. The odds that a profoundly deaf party will find himself unintentionally excluded from some of the rapid back-and-forth discussions that often develop in a multi-party mediation are high. It takes unceasing care to ensure that elders with communication-related disabilities are fully included in all phases of mediation. In addition, elder law mediators need to be aware of the effects of fatigue, chronic health conditions, and medications on the alertness and participation of elders. Elder law mediations may need to be scheduled based on the elder’s periods of maximum energy and alertness at times of day that are not necessarily convenient for other participants. Elder law mediations may need to be scheduled in the elder’s home or care facility, rather than in the mediator’s office or other “neutral setting.” Elder law mediations may require several shorter sessions, rather than one long session. The total time from beginning to end of mediation may therefore be substantially greater. As a result of all these considerations, elder law mediation may often involve more caucused discussions, rather than getting all the parties into one room for big mediation sessions.
Family dynamics may also inhibit full participation by the elder. Elders may be dependent on family members for needed care or financial support. They may be embedded in long-standing patterns of family relationships that make it difficult to speak freely and openly about highly personal matters with their adult children or grandchildren. They may have been raised with cultural expectations that they should not directly assert their own concerns and desires in opposition to those of their family. Sadly, elder maltreatment is most often committed by family members. Elder law mediators must also be alert to the signs and consequences of potential abuse or financial exploitation of a vulnerable adult and must determine and disclose their policies regarding how maltreatment will be handled, including whether it will be reported to adult protection.
The opinions of medical and social service providers generally carry great weight in our society and in elder law mediation. Medical and social service providers are primarily motivated to protect elders from risk. In many cases, professional care providers believe that they can make better decisions for an elder than she can make for herself, particularly when the elder is making decisions that the professionals consider “dangerous,” such as an elder at risk of falls choosing to stay in her own home. The right to take risks is a central part of human dignity and autonomy. We allow younger people to take extreme risks just for the thrill of the experience (skydiving, bungee jumping, etc.). Psychological research into the well-being of elders indicates that autonomy and the ability to make one’s own decisions is a crucial component of well-being, even for those with diminished cognitive capacity. While medical professionals have specialized knowledge and expertise that give their opinions great weight in determining the risks and benefits of different treatment options, they do not have similar expertise when it comes to deciding what relative value should be given to safety versus autonomy in the life of a particular individual. There is a risk in elder law mediation that the opinions of professional care providers will be given undue weight in limiting the range of an elder’s choice.
In addition to serious concerns about the ability of elders to participate fully in the elder law mediation process, there are other concerns that arise in elder law mediation. Any resolution involving elders’ health care or finances may have significant consequences for elders’ eligibility for public benefits or insurance to pay for health care needs. Mediated agreements may have nonobvious, but very serious, unintended consequences. Medicaid rules in particular are extremely complex and nonintuitive and change frequently. Any resolution that results in the elder’s assets, or control over the elder’s assets, being transferred to someone else creates the possibility of a “disqualifying transfer,” which would make the elder ineligible for medical assistance benefits to pay for long-term care for some period. Since this medical assistance is the long-term care insurer of last resort for middle-class as well as low-income seniors, such ineligibility can have extremely serious consequences for a wide range of elders. Any mediated agreement affecting the assets and care of an elder must be carefully vetted by an elder law expert to avoid such problems.
In order to have a successful elder law mediation that avoids these potential problems, the elder law mediator must have the necessary training and experience to deal with these issues. There are no certification processes or training requirements for becoming an elder law mediator. Some local mediators have invested time and resources into building their skills and knowledge in the field of elder law mediation, but it can still be very difficult to find a qualified elder law mediator, or even to know how to look for one. Parties and attorneys seeking elder law mediation need to inquire as to the mediator’s training and experience in dealing with all of the issues noted above.
How can we cope with these challenges posed by elder law mediation? In the first place, elder law mediation exhibits one particular characteristic that is not common to other mediation contexts. In elder law mediation, all parties, while they will also have their own personal interests, ostensibly share a joint and central concern for the well-being of the elderly person. While in other mediation contexts, participants each try to maximize their own interests while seeking common ground, in elder law mediation all participants start with a common interest in the well-being of the elder as the central focus of the dispute.
This difference in the interests of the participants, I argue, leads to a key difference in the role of the elder law mediator. One of the central tenets of mediation, no matter what school the mediator subscribes to, is that the mediator is to be “neutral,” meaning that the mediator is to come to the mediation with no preference regarding outcomes (with the possible exception, for some mediators, of a preference for settlement) and no bias in favor of any party. I believe that, in order to meet some of the concerns of skeptics of elder mediation, a change in the mediator’s role is indicated. The mediator must be neutral as to all other goals, parties, and outcomes, but the mediator should disclose and maintain a commitment to the ultimate goal of preserving and protecting the well being of the elder. I argue that the elder law mediator should seek to keep all parties focused on the well-being of the elder as one of the essential goals of any elder law mediation.
Some have concluded that the challenges described above make elder law mediation an option to be avoided. However, that conclusion fails to take into account certain realities, in addition to ignoring some significant advantages of elder law mediation. The population of those 65 and older grew from 35 million in 2000 to 40 million in 2010 (a 15 percent increase) and will grow to 55 million in 2020 (a 36 percent increase). The average 65-year-old today will live nearly 20 more years. The population of those 85 and older grew from 4.2 million in 2000 to 5.7 million in 2010 (a 36 percent increase) and will grow to 6.6 million in 2020 (a 15 percent increase). As of 2005, 56 percent of persons over 80 reported a severe disability, and 29 percent of the over 80 population reported that they needed assistance with activities of daily living. The need for systems to help elders, family members, and caregivers make decisions about the lives of disabled elders is about to explode. Right now, such decisions are either handled (or not handled) informally or through the courts in guardianship/conservatorship proceedings. Informal decision making can often result either in elders not receiving needed assistance or in elders being unjustly and unlawfully excluded from decisions about their own lives. The courts are already starved for needed resources and groaning under crowded dockets. Guardianship and conservatorship proceedings are both slow and costly. When the likely alternatives to elder law mediation are considered, elder law mediation begins to look much more attractive.
The potential positive benefits of elder law mediation are also great. The difficult discussions that an elder law mediator can facilitate help elders and their family members face up to some of the unpalatable realities of aging in a supportive environment. Elder law mediation can help to preserve important relationships that may be destroyed by conflict and litigation. Research indicates that maintaining strong social connections is a very important predictor of well-being in old age. Elder law mediation can help to resolve conflicts between elders and care providers, enabling caregiving to continue within a structure that is acceptable to both. Elder law mediation can help people in important relationships improve their ongoing ability to communicate with each other about difficult issues. It can give meaningful voice and participation to elders, to their family members, and to their caregivers.
Through elder law mediation, parties may be able to discuss concerns about an elder’s living situation before these concerns grow into a serious emergency. Crisis decision making is often seriously destructive of elders’ values and goals for life in old age. Elder law mediation can be a means of connecting to valuable community services and resources available to elders, of which they and their family members may be unaware. Elder law mediation encourages creative problem solving that takes into account the needs of all parties rather than one-size-fits-all solutions through the courts. It provides greater protection of privacy for elders and their families. Elder law mediation can reduce financial costs both to participants and to the court system.
Elder law mediation is a growing reality. While there are risks involved in elder law mediation, it also presents great promise to elders, their family members, and their caregivers. It is essential that elder law practitioners and dispute resolution professionals become aware of the nature of elder law mediation, what it can accomplish, the pitfalls it presents, and how to avoid them.