Maryland Bar Bulletin
Publications : Bar Bulletin : May 2006

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 Bar Bulletin Focus

Alternative Dispute Resolution    

Senior Mediation

~When more than sixty-four~

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.

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Publications : Bar Bulletin: May 2006

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