| Bar
Bulletin Focus |
Alternative Dispute
Resolution
|
Senior Mediation
~When more than sixty-four~
By Robert J. Rhudy
Persons 60 years of age and over constituted approximately 15 percent (801,036)
of Maryland's population as of the 2000 census. This segment of the population
is projected to grow to nearly 27 percent (1,709,921) by 2025. Older persons
share many of the same problems as other age groups, while conflicts and planning
needs involving health care, housing, estate planning, family care-giving decisions
and others frequently increase.
We all know of instances in which families become embroiled in bitter conflict
over how to care for an aging parent, where siblings engage in protracted litigation
over the administration of an estate and grandparents are confronted with loss
of contact with their grandchildren because of divorce. In addition to legal
advice and representation that may be necessary, mediation can frequently help
parties come together to raise concerns, listen to each other, explore alternatives
and develop agreements. Mediation is a tool that can help family members and
others have difficult conversations to make important decisions in such cases.
The use of mediation and related approaches has expanded very substantially
in Maryland in a wide range of matters since the creation of the Maryland Alternative
Dispute Resolution Task Force by Chief Judge Robert M. Bell in 1998, and its
successor agency, the Maryland Mediation and Conflict Resolution Office (MACRO),
by the Maryland Judiciary in 1999. These approaches have not been used to any
significant extent, however, to help prevent or resolve problems confronting
Maryland's senior population. But this is starting to change.
In February 2005, MACRO made a grant to the Maryland Department of Aging
(MDA) to promote senior mediation services in our state through research, coordination,
training, public information and other approaches. The Maryland Senior Mediation
Project is being developed in collaboration with mediators, local departments
of aging, attorneys, courts, senior organizations and others. The project has
been actively supported by numerous Maryland organizations, agencies and individuals,
as well as the American Bar Association's Commission on Law and Aging, AARP,
the Center for Social Gerontology (Ann Arbor, MI), and the Montgomery County
(PA) Mediation Center's Elder Mediation Program.
From some experience in Maryland and around the country, we know that mediation
and other facilitated decision-making approaches can be used to help seniors
and their families make difficult decisions regarding care and living arrangements,
and to prevent or resolve conflicts involving estate planning, health care,
insurance, housing, nursing homes, grandchild visitation, employment, pubic
agencies, neighbors, and consumer issues. Mediation is being used in some instances
as an alternative or supplemental approach to guardianship proceedings. The
Baltimore County Circuit Court will begin using mediation in contested adult
guardianship cases this summer, and is working with local attorneys, mediators,
the state and local departments of aging and others to help establish the new
program. The Howard County Circuit Court and other courts around the state
are also beginning to implement mediation in such cases.
Mediation is conducted in a safe setting where the mediator acts as a neutral
to help the parties arrive at their own voluntary agreement. Except as otherwise
agreed by the parties or required by law (e.g., concerning physical
abuse or threats of violence), all matters discussed in mediation are confidential.
If the parties have legal counsel, they can decide whether their lawyers will
participate in the mediation or advise them before going into mediation or
signing an agreement. Mediation is generally less expensive and can provide
a faster resolution than litigation. Mediation can be especially useful in
cases where parties wish to maintain relations after the conflict has been
resolved. State and national studies confirm that parties comply with mediated
agreements better than court-ordered resolutions. If the parties do not come
to an agreement, they can take whatever other legal action is desired.
MDA is seeking to assure that all persons, regardless of income, have access
to high-quality mediation services for seniors. The project coordinator has
been working with private mediators, community mediation centers (now located
in most parts of the state and providing services without charge or on a sliding
fee) and court staff mediators for the provision of senior mediation services.
The project has been providing training for mediators on the particular aspects
of working with seniors generally and in adult guardianship and family caregiver
cases, as well as promoting local collaborations between mediators, attorneys
and aging professionals and related service providers around the state.
The Maryland State Bar Association's (MSBA) Alternative Dispute Resolution
Section and Elder Law Section are co-sponsoring a workshop entitled "Coming
of Aging: Senior Mediation in Maryland" on June 16, 2006, at the MSBA Annual
Meeting in Ocean City. For more information, visit the Maryland Senior Mediation
Project from the Maryland Association for Community Mediation Centers' website, www.mdmediation.org,
and click on "Senior Mediation" and "Senior Training" on the homepage, or by
e-mail bobrhudy@yahoo.com.
Robert J. Rhudy, an attorney and mediator, is a
consultant coordinating the Maryland Department of Aging's Senior Mediation
Program.
