What is the importance of age in alternative dispute resolution? One element is integration of older adulthood and mediation. Advocates have developed “elder mediation” to help empower older adults, to help resolve family conflicts impeding “eldercaring coordination,” and to facilitate difficult decisions over, “What to do with Dad” (or Mum). Integration of gerontology and mediation have been signaled as, ‘The Coming of Age” (Wood and Bowman-Kestner 1990) for alternative dispute resolution. This double entendre points to two things; age as a consideration in mediation, and the impact of a demographic “longevity revolution,” as more people are living not only into old age but also the “very old” ages of 85+
In the U.S., the connection between age and mediation began through civil rights advocacy and legal reform on behalf of older adults. The focus was adult guardianship. A national investigation by the Associated Press (AP) in the 1980s exposed rampant problems in what they called an “ailing system.”
How adult guardianship as solution can become the problem
Adult guardianship is a legal decision in which a judge, jury or tribunal transfers legal rights and responsibilities from adults to an appointed guardian. The intention is to provide a surrogate decision-maker for adults who cannot manage finances and/or ensure self-care. Although comprehensive data on guardianship in the U.S. is lacking, past studies have shown a disproportionate number of older adults under guardianship (AP 1987; Keith and Wacker 1994).
The AP expose found egregious problems in court petitions with paltry evidence, hearings lasting minutes without due process protections, and lack of oversight. A presumably benevolent intervention lacked sufficient scrutiny.
Since then, news stories continue to expose guardianship abuse within a poorly monitored system (Wood 2016) that allows exploitation. In a recent documentary, the intended heartwarming story of the world’s oldest newlywed interracial couple abruptly ends through guardianship intervention.
Mediation as a Solution?
Could mediation have facilitated a better outcome? Mediation as elder advocacy intervention was pilot tested in adult guardianship cases as part of legal reform (Wood 2016). One purpose was to refer cases that were motivated through family conflict more than need for guardianship. Goals included helping identify less restrictive alternatives, resolve conflicts that were displaced into “custody feuds” over adult parents, and to improve family functioning to better focus on meeting the needs of older adults (Crampton 2013; TCSG 2001). A less restrictive alternative could still be a legal remedy, such as power of attorney, which targets financial and/or health care decision-making. Another purpose was to address underlying conflict in cases after guardianship appointments. For example, a guardian inappropriately using this legal authority to prevent other family from contact would lose in court and be referred to mediation. In these cases, the goal is not to supplant the legal system as much as to find a better tool for solving problems that were not best addressed through law. An adult under guardianship due to cognitive impairment, for example, might still be included in mediation with modifications, special training, and support (Barry 2013). In Australia, the egregious problems of court-based trials found in U.S. adult guardianship cases have been addressed through use of specialized tribunals (Carroll and Smith 2010). The potential use of mediation for non-legal issues, such as family conflict, nevertheless remains (Carroll and Smith 2010).
In returning to the case of Edith and Eddie, it seems mediation could have played a role. In a follow up investigation inspired by the documentary, Judith Graham found that underlying guardianship decision-making about Edith were longstanding disputes and caregiver strain among Edith’s adult children. She describes an underlying problem of, “Three daughters in distress over the care of an aged mother and roiled by disputes played out in courtrooms among far-flung siblings.”
Would mediation have empowered Edith to better voice her wishes and receive the care she needed? My next blog addresses this question through results from my elder mediation study in the United States, and ongoing challenges in the development of age and mediation into an ADR specialty.
Photo credits: The first photo is from freestocks.org and the second is from pixabay.com
References cited for sources that might not have hyperlinks:
- Barry, L. (2013). ‘Elder mediation’, Australasian Dispute Resolution Journal 24: 251. Accessed through SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2386459
- Bayles, Fred (1987). “Guardians of the Elderly: An Ailing System Part I.” Associated Press. Accessed from: https://www.apnews.com/1198f64bb05d9c1ec690035983c02f9f
- Carroll, R., & Smith, A. (2010). Mediation in guardianship proceedings for the elderly: An Australian Pprspective. Windsor YB Access Just., 28, 53.
- Crampton, A. (2013). Elder mediation in theory and practice: Study results from a national caregiver mediation demonstration project. Journal of gerontological social work, 56(5), 423-437.
- Keith, P. M., & Wacker, R. R. (1994). Older wards and their guardians. Greenwood Publishing Group.
- Kestner, P. B., & Wood, E. (1988). Mediation: The Coming of Age: A Mediator’s Guide in Serving the Elderly. American Bar Association, Standing Committee on Dispute Resolution and Commission on Legal Problems of the Elderly for the National Institute for Dispute Resolution.
- The Center for Social Gerontology (2001). “Evaluating mediation as a means of resolving adult guardianship cases.” Available through TCSG: http://www.tcsg.org
- Wood, E. (2016). Recharging adult guardianship reform: six current paths forward. Journal of Aging, Longevity, Law, and Policy, 1(1), 5.
- Wood, E., & Quinn, M. J. (2017). Guardianship Systems. In Elder Abuse (pp. 363-386). Springer, Cham.