Elder and Probate Mediation: a Vital Resource for Families, by Rosemary J. Frenza, Attorney and Mediator, Legacy Law Center in Ann Arbor, Michigan

April 13, 2011

A simple dictionary search for the word mediation reveals the following definition: action in mediating between parties, as to effect an agreement or reconciliation. Legal practitioners are familiar with mediation as an alternative dispute resolution technique that utilizes a neutral party, the mediator, to assist two or more parties in coming to an out-of-court resolution to a dispute. Mediation is a common and effective technique that has long been used in general civil disputes, as well as in divorce and child custody matters. In fact, I first trained as a domestic relations mediator when I practiced family law. In recent years, however, with a higher percentage of the American population living longer and struggling with evolving and complex issues related to aging, mediation is becoming an important tool to assist families in resolving emotional and delicate situations with their older relatives. Although mediation can be an excellent method for resolving elder law and probate disputes, however, it is only slowly coming into the public consciousness as an alternative to court proceedings. Since I completed training in elder and probate mediation last year, I have struggled to educate potential mediation clients about this valuable resource.

Imagine the following hypothetical situation, variations of which are commonly encountered in a probate and elder law practice: Betty, a widowed mother in her 80s, has two loving adult children, John and Jill, who are both emotionally close to their mother and each other. Betty has lived on her own since her husband died five years ago, in the same house she' s owned since the 1960s. Because her eyesight is poor, Betty has very recently stopped driving, although she still gets together with a group of friends to play cards each week. Over the past few months, Jill and her husband, who live a couple of miles from Betty, have become concerned over what they feel are significant lapses in Betty's short-term memory. Jill goes to Betty's house every night after work, which is a strain on her time, to remind Betty to take her blood pressure medication. Lately, Betty has been stubbornly refusing to take her medicine, suddenly insisting that she doesn't need it. Jill has also taken over writing checks for and mailing all of Betty 's bills. Jill has noticed that Betty is starting to lose her balance more easily and that the many stairs in her home have become very difficult for Betty to navigate.

Recently, Jill has researched both in-home nursing care and assisted living facilities in her Michigan community, but when she suggests either of these options to Betty, Betty insists that she' s always been just fine on her own and doesn't need help. John, who lives in California and only sees Betty several times a year, agrees with his mother. Because Betty struggles to hide her memory lapses during his phone calls and visits, John feels that Jill is exaggerating the situation. He thinks that his mother is fine and that Jill is being dramatic, as she always has been. He is also secretly concerned that spending money on an in-home nurse or a live-in facility will unnecessarily reduce his one-half share of Betty' s significant assets when she passes away. Jill has told Betty and John that she plans to file for guardianship over her mother, so that she will have the authority to make her mother' s medical and placement decisions. Betty and John are hurt and angry about this decision.

The above situation is potentially an excellent fit for mediation. Three family members are involved, who have a history of being a tight-knit unit. Betty' s children want what is best for her, but don' t agree on what that means. For her part, Betty is understandably fearful of losing more of her precious independence. All three parties are slightly suspicious of the others' motives. Some of the suspicion and disagreement derives from the parties very different perspectives on the same situation, which is exacerbated by the stress that comes with the declining health of oneself or a loved parent. A neutral party, in the form of a mediator, can potentially guide all three family members to a more complete understanding of each others concerns, perspectives and motives. A successful outcome to mediation could have any number of practical results with regard to where Betty lives and with what amount of assistance, but ideally would unify the family in deciding on some goals and a course of action to deal with Betty' s issues and needs before taking any legal action that could potentially rupture their family relationships.

It is also interesting to note that in dealing with a situation like Betty's, a mediator would have a number of factors to consider before and during mediation. Should the elderly party be present? In Betty's case, she is clearly interested in her own future and alert enough to be involved; in cases where a parent has advanced dementia, there might be several reasons not to include her or him, including causing unnecessary stress. Another factor to consider in meeting with the parties individually before mediation is whether each party is able to stand up for her or himself or is likely to be bullied or strong-armed by another party. The decisions a mediator must make are as varied as the situations presented for mediation, and must be resolved carefully and continuously as the mediation progresses.

In addition to situations like Betty's, where the issue involves the future of an elderly relative, elder and probate mediation has many other uses. According to Zena Zumeta, a mediator and training expert, such mediation can help families have a constructive conversation about the care of an elderly or disabled family member, the disposition of a family home and its contents, or the disposition of a will or trust mediation provides a facilitated discussion with a beginning, middle and end, and a written outcome that can be signed by all parties.

As our population begins to live longer than ever before, I predict that mediation will become a more vital and valued service to families facing difficult decisions. According to one of my colleagues, attorney and mediator Karen Sendelbach, the greatest act of love a family can give an elderly relative is a dignified, respectful and loving resolution to any final conflicts in the family, which is possible through mediation. Elder and probate mediation can and does preserve family relationships, reduce stress, and serve as a self-directed alternative to court proceedings.

Rosemary J. Frenza is an attorney and mediator with Legacy Law Center in Ann Arbor. She specializes in estate planning and administration; guardianship, conservatorships, developmental disability and mental health law; elder law; and elder and probate mediation.

Legacy Law Center
Terrence A. Bertram, PLLC
2950 S. State Street, Suite 300
Ann Arbor, MI 48104
Phone: (734) 995-2383
Fax: (734) 995-0522
Web: http://www.legacypllc.com