By Eva M. Soeka

Alice Baker, 87, is about to be discharged from a Milwaukee hospital following a ten-day stay for congestive heart failure. Her daughter, Carol, 55, who lives in New York, and her son George, 50, who lives in Denver, have been active in planning their mother’s discharge. Carol believes that her mother needs 24-hour skilled nursing care while George believes that a live-in aide may be a possibility. Both are concerned about her declining mental status. Mrs. Baker is intent on returning to independent living in the home she has lived in for the past 40 years. Carol’s lawyer has advised her that her only option is to file a petition for guardianship to resolve these issues. Is there any other option? Perhaps, there may be.

In 1995, the Center for Social Gerontology in Ann Arbor, Michigan, with funding from the Hewlett Foundation and the Retirement Research Foundation, developed a national model for adult guardianship mediation. That model is currently being tested in Wisconsin, Oklahoma, and Ohio. In Milwaukee County, Wisconsin, Mrs. Baker and her children may be able to participate without charge in a mediation system designed specifically to hear age- and disability-related cases otherwise destined for the court system.

Mediation is facilitated negotiation. Typically, it is an informal alternative to the adversary system that allows parties to resolve a dispute with a mutually acceptable written agreement. Sessions take place in a private, confidential setting where all participants have a voice. The mediator makes no decisions; instead, he or she clarifies the issues, asks questions, and explores potential problems and their solutions. The mediator’s primary goal is to assist the parties in reaching a mutually acceptable resolution.

What is Adult Guardianship Mediation? 

In the adult guardianship setting, mediation may take place in anticipation of a potential guardianship; that is, before a petition for guardianship is filed or to help resolve issues while a petition is pending or when disagreements arise after guardianship is in place. In many cases, mediation may be more helpful than a formal court hearing where typically all parties cannot be heard and deeply divisive family conflicts cannot be resolved.

Generally, mediation is most suitable in cases that have three characteristics: an ongoing relationship; the need for privacy; and the need for a creative and flexible solution. Cases that have ongoing relationships between the parties, whether business or personal, are often the most suitable for mediation. This statement is premised on the fact that while the dispute may be settled, the relationship may not terminate at the conclusion of the dispute. As a result, cases particularly well suited to a mediated resolution are those involving divorce, employment, closely held corporations, business partnerships, construction contracts, and a variety of commercial contracts. The greater the need for privacy the more likely the parties will want to take the dispute out of the public forum of litigation.

Privacy concerns are not necessarily limited to cases where there is an ongoing relationship. Cases dealing with sensitive medical or psychological information are particularly suitable for mediation. In these disputes the parties are highly motivated to keep such information out of the public eye. Cases that need to go “beyond law” to achieve a settlement are suitable for mediation. The law is often limited to a narrow decision designating a winner or loser or the amount of money damages. With mediation, the parties can structure a resolution in the form of a contract that offers options that go beyond those provided through traditional litigation. Judges or juries often are aware of such options but may have no power to craft these types of solutions. In mediation the participants craft their own solution, so anything is possible.

These three characteristics apply to adult guardianship cases. Adult guardianship is a drastic legal remedy where a person is determined to be legally incapacitated or incompetent and incapable of handling personal or financial affairs or both. Adult guardianship may result in the loss of basic personal, contractual, and legal rights, such as choosing where to live, handling personal finances, making decisions about medical care and even, in some states, voting or getting married. A guardian assumes decision-making rights for the incapacitated person.

With the aging of the American population, an increasing number of people will reach an age where their decision-making abilities may be questioned. Social service workers and health care providers are already seeing this trend and courts may experience congestion and delay as a result. Recent studies show that there are more than 500,000 Americans currently in the guardianship system in approximately 2,500 courts nationwide. As a result, adult guardianship mediation is a more attractive option than an adversarial court proceeding. One of the primary reasons is that it includes the older person in the decision-making process. Mediation also allows for the participation of family members and other nonfamily member caregivers, such as friends or neighbors. It encourages consensus-building among those who care about the proposed ward and it helps preserve relationships among those individuals. It ultimately ensures that the proposed ward receives the best and most appropriate care possible. As a result, mediation often avoids the emotional trauma of an adversarial court proceeding.

The Process

In contrast to court proceedings, mediation provides structured informality. The mediator opens a session with a discussion of the process, the role of the mediator, and confidentiality requirements. Following the mediator’s opening, each of the participants (usually with the petitioner going first) is asked to present his or her perspective on the situation. The mediator hears from each party and allows each to describe in some detail his or her view of the facts, feelings about the situation, and any proposed solutions. Following the participants’ statements, the mediator conducts a joint session in which all parties are asked a variety of questions so the mediator can clarify the issues, explore options, and test possible solutions. At some point during this joint discussion, many mediators will ask the parties to caucus. A caucus is a private meeting with the mediator in which the party is assured of confidentiality. In a private setting, the mediator has another opportunity to explore possible options for resolution that may not be accessible through a joint session. Caucuses also often help to diffuse emotions.

Mediation may conclude in one session or multiple sessions. It may be conducted in one day or over a series of weeks or months. Many states currently have statutes regulating the qualifications of mediators and the limits of confidentiality in the mediation setting. Most mediators also follow nationally recognized standards of conduct or codes of ethics promulgated by such professional organizations as the Society of Professionals in Dispute Resolution or the American Bar Association.

Adult guardianship mediation appears to be highly effective. The Center for Social Gerontology tested its model for almost three years in Washtenaw County, Michigan. Most cases arose from disputes already filed in court. A few of the disputes were about actions of a guardian that had already been appointed by the court. More than two-thirds of the cases were mediated to an agreement. In over 60 percent of the cases, in which a petition for appointment of a guardian was the issue, the petition was withdrawn or adjourned pending the fulfillment of the agreement. Approximately 80 percent of the participants stated that mediation was a useful and successful process. The final report on the adult guardianship mediation report is available from the Center on Social Gerontology in Ann Arbor, Michigan.

Another four-site project funded by the Retirement Research Foundation produced mixed results, although 86 percent of participants said they would use mediation again. More information will be available regarding the Wisconsin-Oklahoma-Ohio tests later in the year.

Mediation is a viable alternative to the adversarial process for adults, families, and caregivers who are considering an adult guardianship petition. It may offer a faster, cheaper, and more satisfying process for all participants. Given the developments in modern medicine and the resulting increase in life expectancy, it is wise for lawyers, their clients, and others concerned with issues of the aging to consider mediation as an option in adult guardianship cases.

Eva M. Soeka is the director of the Marquette University Center for Dispute Resolution Education and its graduate program in dispute resolution. She speaks and writes frequently on mediation, negotiation, and systems design.

For more Information About the Senior Lawyers Division:

• -This article is an abridged and edited version of one that originally appeared on page 10 of Experience, Spring 1999 (9:3).
• -For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.
• -Website: www.abanet.org/srlawyers/.
• -Periodicals: Senior Lawyer, quarterly newsletter; Experience, quarterly magazine.
• -Books and Other Recent Publications: The Lawyer’s Guide to Insurance; Reverse Mortgages; The Of Counsel Agreement: A Guide for Law Firm and Practitioner, 2d ed.; Guardianship & Conservatorship: A Handbook for Lawyers; The Lawyer’s Guide to Retirement: Strategies for Attorneys and Their Firms; Turning Points: New Paths and Second Careers for Lawyers; Law Partnership: Its Rights and Responsibilities; Mentor Program Resource Guide.