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Elder Mediation

Nothing brings out the skeletons in the family closet like addressing the legal, medical, financial, social and family issues of an aging parent. Childhood favoritism, expectations of inheritance, and dissolution of property can cause a schism in the closest of siblings. It’s a growing problem. By 2030 the number of older people (over 65) is expected to increase to over 70 million, or nearly 20 percent of the population.
The answer could be elder mediation, a burgeoning field where complex eldercare issues are addressed by a specialist in elder mediation who can advance the process of conflict resolution without advocating for one particular party. In fact, the goal is to ultimately find a common ground in which all parties feel their concerns have been addressed and seriously considered. Needs, rather than positions, are the focus.
Jerald Kessler, Mediator/Attorney, based in Libertyville says that
elder mediation is a growing field partly because of the aging population and the expense of litigation. “Legal remedies are hard to calibrate,” he says. Going to court is a fairly drastic step.
He says that often a situation needing mediation arises when the elderly person is reluctant to surrender independence in any form and resists efforts to limit mobility like driving and living independently. A conversation unfolds. Usually, family members express concern and worry and offer options like alternative transportation, assistance in various daily functions, and a discussion of other living situations.
Mediation is helpful when there is an impasse—the children are not on the same page but he cautions that “every family is different.”
“There’s a basic process. Theoretically, gather information, identify specific issues, brainstorm options and discuss acceptable options and come to an agreement.” Conflict resolution skills rather than adversarial skills are at work here. “Attorneys who mediate are not going to give legal advice—they are there solely as mediators,” says Kessler.
“The key is to have a mediator who can alter that model to the specific situation. Artistry is involved. A lot of training is involved. The last thing the family needs is a lawsuit. A lawsuit is a crude implement for addressing issues that come up. Legal remedies are not finely tuned. It’s all about process. You can come up with individually tailored outcomes as opposed to having it imposed through the court,” says Kessler.
People in all sorts of professions mediate—it is not regulated in Illinois. There are circuit-by-circuit certifications for court-ordered mediation but the quality is minimal, according to Kessler.
“Consumers have to do their homework. A lot of mediators have minimal introductory training. It presents a challenge to the profession.”
"More and more people want mediation—so they are becoming educated about it. Mediation minimizes legal expense and preserves family relationships,” says Kessler.
Bill Wilson, of the Wilson & Wilson Law Offices, Center for
Estate Planning and Elder Law, in LaGrange says elder law disputes are “like a divorce with more characters involved.”
He says the issues usually involve money and who is going to be the guardian. The scenario usually involves someone who isn’t getting what he expected—nothing or less than
“Money becomes a symbol for affection so it could be a small or really large amount. If they need another lawyer it’s usually a large amount because attorney fees are too high for a small estate,” he says.
Wilson says most issues can be resolved, but sometimes he sends people to an attorney who specializes in mediation if there will be a conflict of interest in reaching a settlement.
He says conflict often arises when the children of the first marriage are concerned about the parent’s assets after the parent has remarried. Often, when someone draws up a will or trust there is a child who has not seen the person, talked in years or has stolen money. There are many areas of bad blood. “It has all the emotions and baggage of childhood. Sometimes spouses get in on it, telling their spouses they should get money,” says Wilson.
The stakes are higher than ever before. “The amount of money being shifted to and from the boomers is the greatest amount of money ever being transferred. A lot of people want that money so there is a lot of litigation. Mediation is cheaper than going to full trial,” says Wilson.

More sources for eldercare mediation are available today like Mediate.com, eldermediators.com, and the National Eldercare Mediator Network. Not only can you find a wealth of information on the subject but there are state-by-state directories.
Eldercare mediation is a growing industry of elder care mediators with various backgrounds and levels of training.

Mediation and Special Needs Attorneys

According to the National Association of Elder Law Attorneys (NAELA), Elder and Special Needs Attorneys are experts in key areas including:
  • Estate Planning and Probate
  • Estate and Gift Planning
  • Guardianship/Conservatorship
  • Medicaid
  • Medicare
  • Entitlement Programs
  • Retirement Benefits
  • Age Discrimination
  • Elder Abuse/Neglect
  • Housing
  • Long Term Care  Financing
  • Medical Decision Making
  • Disability Planning
  • Insurance

Eldercare Mediators say that their specialties include:
  • Quality of Life
  • Housing
  • Car Keys, Driving and Transportation (limitations on driving, testing, transportation to medical appointments, friends, social events and church).
  • Caregiving (division of duties, relief for caregivers, level of care needed, planning vacations for parents and caregivers)
  • Financial Decisions
  • Working through Family Fights (improving sibling relationships, learning communication skills, and working as a team)
  • Geriatric Assessment
  • Wills, Trusts and Estates (planning, distribution of assets, and resolution of family disputes)
  • Division or Sale of Farms, Business and Property
  • Powers of Attorney and Avoiding Guardianship
  • Health Care Decisions
  • Emergency Decisions
  • Planning Ahead for End of Life Decisions (funeral planning and Advanced Directives, Living Wills/Life Prolongation, organ donation preference, appointment of health care representatives)
  • Resident injury, level of care, and Wrongful Death

Published: October 13, 2012
Issue: November 2012 Issue