LawyersUSA

Mark Glasser and Suzanne Matthews have waged one of the most acrimonious custody battles in recent history, reportedly running up a legal tab of some $3 million.

But they are not a divorced couple fighting over children. They are brother and sister fighting over guardianship of their mother.

Their mother, Lillian Glasser, has a large fortune once estimated at $25 million. Matthews had sought to become her mother's guardian and transferred $20 million of her mother's money to a family limited partnership, but her brother fought the attempt and supported a guardianship petition from a family friend to be her guardian.

Last year, New Jersey Superior Court Judge Alexander Waugh appointed two non-family guardians for Mrs. Glasser and ordered Matthews to return the money.

The case is egregious, but lawyers say it is emblematic of a growing trend: custody battles involving adult children fighting over where their elderly parents should live, who should care for them and who has control of the finances.

As life spans increase, the prospects for sibling squabbles over mom and dad grow more likely and have given rise to a new preemptive tool: elder mediation.

Across the U.S., family lawyers and estate planners are turning to mediators – and sometimes serving as mediators themselves – to resolve family disputes involving elderly parents.

"It's just starting to be recognized as a separate discipline," said Donald D. Vanarelli, an elder lawyer and mediator in Westfield, N.J., and founder of the New Jersey Elder Mediation Center.

"The reason I got into it was that I realized I was doing a lot of it as part of my elder law practice," he said. "So many times, there's baggage from the past. It's like the old Smothers Brothers line, 'Mom always liked you best.' There are things that linger from decades ago."

Elder mediator checklist

If mediation is called for, lawyers shouldn't wear both hats, experts say. They should encourage families to find a mediator and recommend mediators who might be good for the task.

Carolyn Rodis, an attorney in Harwood, Md., who devotes all her time to mediation and mediator training, offers a checklist for traits that lawyers should seek in elder mediators.

First, she said, the mediator should have experience with elder mediation – not just mediation per se. "The issues in elder mediation are just so different and they often involve so many parties," she said.

Second, the elder mediator should be familiar with relevant legal subjects, such as Medicare/Medicaid and guardianship laws. He or she should also know relevant legal terminology, such as powers of attorney.

Third, she said, a good mediator provides referral sources to other services on the front end of the process. "The mediator should tell the family that there are issues that may come up and here's where you can go to deal with them."

Fourth, "mediators should have a sensitivity to aging itself – the physical and emotional aspects of it."

Penny Hommel, co-director of the Center for Social Gerontology in Ann Arbor, Mich., agrees that elder mediators' experiences, skills, and sensitivity are highly important. But she also argues that because mediation is an unregulated practice, it's hard to ascertain who's good and who's not.

Mediation can be productive "when done properly," she said. But "what I've seen is a lot of people doing it who don't have a real background in, or understanding of, gerontology or the dynamics of aging."

Plusses and minuses

Shirley B. Whitenack, a partner at Schenck, Price, Smith & King in Morristown, N.J. who focuses her practice on trusts and estates litigation and elder law, is a proponent of elder mediation, but also said it has disadvantages.

She said that an elderly person's rights might be compromised unnecessarily in a mediation agreement. For example, she said, the elderly person might agree to move into an assisted living facility to appease a child or other family member even though the person would rather live at home with a caregiver and could afford to do so.

But she said that mediations offer numerous advantages:

• Parties – not courts – have control.

• They're cheaper and faster than court proceedings.

• They're usually confidential.

• They're less intimidating than court proceedings.

• Solutions can be more creative.

Janet Mitchell, a solo elder lawyer and mediator from Leo, Ind., points out other advantages. Parents are better able to maintain their dignity in mediations than in court proceedings, she said. And mediations can improve family relationships.

"Good solutions come from healthy conversations," she said. "Not from arguing."

Developing skill sets

The requisite skills for elder mediation are not the same as the ones needed for other kinds of mediation.

"The biggest difference is that elder mediation is much more emotionally involved," said Whitenack. "Sometimes the dispute really is about who Mom liked best.

"You've got to have a lot of patience and compassion, and you need to understand that as a mediator, you need to facilitate – not judge."

Hommel, of the Center for Social Gerontology, said she has been disappointed in the quality of many elderly mediators.

"Some people have come into the field who don't have an understanding of the importance of elderly people having a voice," she said.

"Some adult children say it will be too upsetting for Mom or Dad, so we'll have this discussion ourselves. But Mom or Dad needs to be part of the discussion. I feel very strongly about this."

In Maryland, Rodis founded a nonprofit organization, Senior Mediation and Decision-making, Inc., which is devoted to training, research and education of elder mediators. She said that the organization has received a grant from the state judiciary to expand the ranks and the skill sets of elder mediators in Maryland.

In large part, she said, the program is seeking to create supply to meet demand.

"The children of elders – Baby Boomers – are more amenable to it than their parents. Baby Boomers are used to talking things out," Rodis said.

Questions or comments can be directed to the writer at: dick.dahl@lawyersusaonline.com