The Role of Mediation in Estate Planning

RoleOfMediationEstatePlanningAs a large portion of the population grows older, more and more families are faced with elder care issues. Whether a family is determining the safest place for an aging parent to live or is making decisions about an estate, mediation can play an important role in preserving family harmony and protecting the best interest of the elder members of the family. Mediators focused on elder law can effectively guide decisions regarding guardianship, estate planning, visitation and elder care, and family businesses.

Typically, a mediator’s role is one of absolute neutrality, but in cases of elder law, there is a tendency to act as an advocate on behalf of the elder. This is not always necessary, but there are times in which the mediator must act as the voice of the elder.

One of the most important decisions mediators must make when planning mediation is whether or not to include the elder family member. If it is not possible for the elder to attend the session or the mediator believes a pre-consultation is necessary, a meeting is held beforehand between only the mediator and elder to discuss a variety of issues. Communicating in advance about issues reduces the risk for miscommunication and establishes trust between the mediator and elder. Additional pre-mediation meetings might be scheduled with other members of the family.

Mediation sessions often include expert assessments that give perspective to the issues at hand. Geriatric care managers, financial experts, and various caregivers are brought into the mediation session to provide their expert opinion. Additionally, there might be several sides involved in this type of alternative dispute resolution. Co-mediation is used keeps things organized and ensure everyone’s views are heard during the process.

Issues addressed during elder mediation include:


  • Division of family inheritance
  • Division of a family business
  • Ability of elder to continue driving
  • Current and future care of the elder, including guardianship

Mediators acknowledge there are often two issues at hand during the session. The first is the care of the elder and the financial issues. These are the nuts and bolts issues that all participants must sort through. The second issue is the overall well-being of the family. Often, the elder is the most concerned about this issue and family harmony is of high priority. Many elders place more emphasis on this than they do on their own well-being and care.

Mediators are most successful when they take both of these issues into account. Not only are they tasked with helping families make smart decisions about medical care, safety, and finances, they must also work to preserve and possibly repair relationships in a family.