By Steve Lash
The Daily Record Newswire
BALTIMORE, MD — Courts deal in winners and losers and are often ill-equipped to resolve issues involving warring siblings contesting the guardianship of their ailing or disabled parents.
Proponents of guardianship mediation say it offers an alternative that allows the siblings to vent what may be decades-long grievances and decide among themselves how the issues should be handled.
“The greatest thing that mediation can do is improve the communication among the family members,” said Carolyn J. Rodis, a mediator and attorney at Rodis and Henick LLC in Harwood, Md. “It’s the magic of mediation. Mediation gives people a chance to be heard.”
From the perspective of the judge, who still must make the final decision in guardianship cases, mediation “saves the court the time of a lengthy, contested hearing,” said Baltimore City Circuit Judge W. Michel Pierson.
“You may have all these family issues that are lurking and they all come bubbling up” when a guardianship petition is filed, Pierson said. “The legal issue is not necessarily congruent with the issues that the family is trying to resolve.”
Robert J. Rhudy, a longtime backer of senior mediation, recounted one case he handled that involved four siblings in three far-flung states and a parent who was in a coma. The dispute centered on who would make the parent’s health care and end-of-life decisions.
Three separate, four-hour mediation sessions were held over two months, Rhudy said. After heated discussions, the resolution was that one sibling would have the final say but only after the others had been consulted.
“A court would not have done this,” Rhudy said. “A court would have said, ‘You’re it. Do it.’”
Rhudy said a statewide adult guardianship mediation program could be operated at a cost of at most $30,000 per year, using volunteer lawyer/mediators. The state’s major expense would be paying the travel costs of these pro bono mediators, he said.
“We have the capability of creating a very inexpensive program that could provide this service, but it requires a little more public funding for planning and support to expand the service,” said Rhudy, now appellate mediation director at the Court of Special Appeals. “It would be possible to do so at a very inexpensive level by using experienced, trained lawyer/mediators from community mediation programs around the
state.”
For the plan to win financial support, judges would have to speak in support of it, Rhudy said.
“They’re the ones who can sell it to the rest of the court system,” he said. “They’re the ones who can say, ‘We ought to be doing more of this.’”
The Maryland Judiciary, through its Administrative Office of the Courts, already supports the use of mediation in contested adult guardianship cases, said Connie L. Kratovil-Lavelle. She is executive director of AOC’s Department of Family Administration, which handles family-law issues.
“It is on our radar,” she said.
In the Baltimore County Circuit Court, six staff mediators handle about a dozen contested guardianship cases annually, of which about 70 percent are resolved in mediation, said Wendy Sawyer, who directs the Towson court’s Office of Family Mediation.
Contested adult guardianship mediation involves “the same thing we do in divorce cases in reverse,” Sawyer said.
Rather than resolve custody of the child, the issue is custody of a parent, she added.
The office, which handles 600 family-law mediations annually, has mediated adult guardianship cases for the past four years on referral from judges, the county departments of social services and aging and the parties, said Sawyer, who is also a mediator.
The Baltimore City Circuit Court, by contrast, refers adult guardianship cases to private mediators through its alternative dispute resolution program.
A private mediation generally runs between $250 and $350 per hour, according to Rodis and Rhudy.
Elder law attorney Jason A. Frank said he “completely” supports mediation for guardianship cases, even though it’s not going to be “100 percent effective,” particularly when siblings are truly “at war.”
Giving brothers and sisters a forum to vent their underlying disputes and determine their parent’s best interest is “always a good idea when there’s family conflict,” added Frank, of Frank, Frank & Scherr LLC in Lutherville.
“It’s not going to make people love each other when they’ve hated each other for the last 50 years,” said Frank, whose clients include the Baltimore County Department of Aging.
In assigning cases, Ronna Jablow, who manages the Baltimore City Circuit Court program, said she looks for lawyers with experience in guardianship cases who have been specifically trained in elder-care mediation involving warring family members.
It’s a smaller pool than in other areas of family and civil law, she said.
Rodis, too, said guardianship mediators must have patience and training in familial dynamics, in addition to knowing the law.
Her own method is to let the emotions flow.
“I don’t set ground rules that people have to take turns and not interrupt each other, because they’re going to interrupt each other,” she said. “I just want to make sure that nobody is being shut out. I give
everybody an opportunity to interrupt and yell.”
Through the free-flowing discussion, the siblings can gain a better understanding of each other’s positions — as well as the concerns of the parent, Rodis said. She used the example of an elderly man whose children want to stop him from driving because he has had two accidents and no longer has peripheral vision.
Ultimately, what the father needs may not be a guardian but simply a bus schedule, or someone to drive him where he wants to go, she said.
First, though, “The family needs to hear why he’s so upset,” Rodis said. “He’s not being stubborn. It’s because he’s mourning the loss of his adult life.”
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