In the recent past when families believed an elder member had physical or mental conditions that affected decision making, someone typically confirmed it through the courts.  In the 1990s, some jurisdictions began offering mediation after the filing of the petition so that the family members and the elder in question could discuss alternatives, which would address issues without taking away the rights of the older relative to make all or most of their own decisions.

Soon, Elder Mediation began to include a wide range of aging issues that families might experience.

Two characteristics make elder mediation unique: Typically, Elder Mediation includes the older person with members of their family. Second, the issues addressed are related to the well-being of the older person and can include such things as turning in a driver’s license, discussing living/caregiving arrangements, financial issues and end-of-life decisions.

Elder Mediation can not replace legal advice and should be complimentary to the practice of elder law. It should be used to identity and address the underlying concerns in a cooperative, non-adversarial setting. Attorneys should be consulted for legal advice and drafting legal documents that outline decisions made during Elder Mediation sessions. 

Mediators with the background and skill to conduct Elder Mediation will usually identify themselves as family mediators, which can be social workers, marriage/family counselors, psychologists, attorneys, clergy and other types of professionals. But to conduct Elder Mediation, they should have additional training with the aging process and family dynamics. With training in aging, elder mediators have sensitivity to the issues facing older people and developed appropriate listening and language skills.

Elder mediators must be cognizant of the older participant’s ability to understand and engage in the mediation. If the mediator believes the person needs assistance to present their concerns, the mediator may suggest an advocate be present. However, if there are questions of any of the participants being cognitively capable of competently participating in the mediation process, the mediator will terminate the session and refer the parties to appropriate professional help.

The anecdotal evidence is that family members typically report that the mediation gave them a greater peace of mind and enhanced quality of life as family relationships improved.

One of the most frequent questions I receive is how does child custody and visitation mediation differ from other forms of mediation.

It is estimated that less than 50 percent of children in the United State reach adulthood with both their parents in the home. More than one million children a year are involved in divorce and most are younger in age since the majority of divorces occur during the first years of marriage.

The Uniform Marriage and Divorce Act approved in 1970 provided the standard for custody decisions and that they should be in the “child’s best interests” and as a result the concept of “joint custody” originated.

In most states, court-sponsored mediation is offered for custody and visitation. In some states it is mandated by law. Some courts provide it at no charge; others charge a fee; others provide referrals to mediators who provide reduced-fee services. It is also possible in some states to use a private mediator not affiliated with the court.

Custody mediation is significantly different from other forms of mediation. The scope of the mediation is limited and the background and role of the mediator differs.

In general, custody mediation is a cooperative problem-solving process to help parents reach mutually acceptable agreements that address all their concerns. The objective is to develop a written parenting plan (also called a custody and visitation agreement), which specifies when the child will be with each parent and how the parents will make decisions about the health, education and welfare of the child.

Mediators are expected to be neutral and impartial and not to favor either side. This focuses the decision-making on the child’s developmental and psychological needs rather than on parental demands.

The best interests of the child standard as defined by the Uniform Marriage and Divorce Act includes all of the following:

               1. The  wishes of the child’s parent(s) as to custody. 

2. The wishes of the child as to custodian.

3. The interaction and interrelationship of the child with the parent(s), siblings and any other person who may significantly affect the child’s best interest. 

4. The  child’s adjustment in the home, school and community. 

5. The mental and physical health of all individuals involved.

Between 50 and 75% of custody mediations result in an agreement. Parents who mediate are much more likely to feel satisfied with the outcome compared to parents who go to litigation, feeling that one party won and the other lost. 

Generally, while custody mediation typically occurs during a stressful period in the parents’ lives and be itself stressful, after the process both women and men reported feeling able to express themselves and were staisfied overall with the mediation, even if the final outcome wasn’t what they first expected.