Making Mediation Work in Guardianship Proceedings: Protecting and Enhancing the Voice, Rights, and Well-Being of Elders

Abstract

Guardianship law and proceedings have long been subject to challenge for their negative effects on the rights and the well-being of elders. The rapid increase in the numbers of impaired elders will put the current system, with all its serious flaws, under impossible strain. Developing international human rights law calls into question the validity of guardianship systems as a means of protecting the impaired elderly. A radical re-thinking of how to meet the needs of impaired elders is overdue. Elder law mediation is one of the more promising means for addressing the challenges and failures of guardianship. This article defines the concept of elder law mediation, analyzes its potential to correct some of the worst flaws in the guardianship system, examines attitudes of institutional players in guardianship toward elder law mediation, and reviews some of the early elder law mediation programs across the United States. Finally, the article examines some of the risks and potential disadvantages of elder law mediation in guardianship and prescribes steps needed to make elder law mediation a successful and safe alternative means for protecting the rights and the well-being of impaired elders.

Keywords: elderly, guardianship, mediation, human rights, therapeutic jurisprudence