Meditations on Mediation

My old friend Fred Hertz is arguably the nation’s leading expert on “gay divorce.” A lawyer, he represents partners in break-ups and has written a book on the subject, been interviewed on NPR, appeared on Oprah, and is frequently quoted in the press.

So, I was more than a little surprised when he told me recently that he doesn’t want to litigate cases anymore but instead, use his skills to help couples stay out of court. After spending years handling mostly property ownership disputes, he’s concluded that conflicts involving people in personal relationships are better resolved through mediation than the adversarial process. Even in “successful” cases, where his clients prevail, they often come out feeling bitter and disappointed.

I’ve been interested in the use of mediation in elder abuse cases for years despite the bad rap it’s had in our field. The negative bias is a spillover from domestic violence theory, which holds that power differences between women, the victims in most cases, and their male batterers make mediation inherently unfair and dangerous. That’s because of institutionalized inequalities and barriers to justice, resources and protection. But most elder abuse cases don’t involve societal injustices. When you take that factor out of the equation, what's left are the inequalities and unfair advantages that exist between individuals, which aren’t nearly as insurmountable.

Fred’s cases often involve extreme imbalances of power with respect to personality, money or class. “When I ask clients why they contributed to the purchase of homes but never went on title or why they contributed more than their share, they often tell me that’s how their partners said it was going to be and they were too intimidated to refuse." Sounds to me like a lot of the elder abuse cases we see.

According to him, mediation is often the best way to resolve these imbalances, especially for the weaker person who has the most to gain. As intimidating as it can be, it’s much safer and cheaper than litigation. He cautions, however, that whenever serious power imbalances exist, mediation has to be structured in a way that protects weaker parties, which usually means that they have advocates present, or at a minimum, mediators who are willing to take on this challenge. “Traditionally, mediation hasn’t been used in cases that involve any sort of intimidation or fear on one party's part, so mediators need special training and different protocols.”

Reticence toward mediation extends beyond the elder abuse network into the broader aging services community. That's according to the Center for Social Gerontology of Ann Arbor, Michigan, which has been pioneering the use of mediation as an alternative to guardianship since the early 1990s. In 2001, they released a four-state study, which found that mediation was effective in helping disputing parties in guardianship cases reach agreements in three-quarters of cases. They’ve also explored the use of mediation in elder/family caregiver conflicts. Despite the promise it holds, mediation has been slow to catch on, which prompted the Center to form the National Elder Mediation Network earlier this year.

Just as we can’t apply one-size-fit-all interventions to the widely divergent cases we see, neither can we afford to reject interventions wholesale. Instead, we should be exploring when mediation is appropriate and when it’s not. It would be a shame to let misplaced biases get in the way.