An Introduction to Elder Mediation, or Mediation in Elder Law Cases
Are you concerned about conflict in your family, or a potential conflict, that involves an elderly person, changes related to aging and increased vulnerability, or administration of a probate estate? If so, your family may benefit from Elder Mediation. Elder Mediation offers the same benefits as other mediation: it is private, it keeps your family in control of its own decisions, it is voluntary, and it can be a very effective form of conflict resolution. There are other factors which make Elder Mediation very different from other types of mediation.
Elder mediation is distinguished from other forms of mediation by the types of issues involved. There are three recurring types of issues that tend to come up: (1) resolving differences about planning for future financial or care scenarios, including estate planning, business succession planning, and advance care planning; (2) helping to achieve family agreement during a crisis, such as when an Elder has fallen and decisions must be made quickly; and (3) mediation to settle disputes over estate matters.
In addition to being distinguished by types of issues involved, Elder Mediation is also distinguished by its complexity. Conflicts are likely to involve complex legal and financial issues, multiple stakeholders, entrenched family dynamics, emotional challenges, and a vulnerable adult. Elder mediation helps embattled family relationships overcome these challenges in two ways. First, communication is controlled so that negative feelings can be expressed in ways that don’t damage relationships. Second, the mediation process facilitates real communication and enables parties to address the core interests that are causing conflict. The aged adult will also be included in discussions and in decisions to the fullest extent possible, taking into account their capacity to make decisions.
Attorneys, accountants, and elder care managers are usually the first ones consulted by a family seeking proactive help. No matter how much expertise these professionals have, they can’t do their jobs effectively when divided families can’t agree on goals or when all concerns are not brought forward. And, just one family member who disagrees with the goal can destabilize the most extensive planning and cause tens of thousands of dollars to be expended to defend a lawsuit. This is where an Elder Mediator adds key value. A neutral mediator can help the parties ensure that complex, preventive planning and care management takes into account all interests, is realistic, and is based on a unified family agreement. When these measures are taken, there is much less likelihood of later challenge.
Sometimes the barriers to agreement can be profound. Siblings may vie for favor, tempers may flare; distrust builds, and relationships suffer. In emotionally volatile situations, the family needs a skilled, neutral party to help the family put aside old patterns of interacting and adopt new patterns, in order to address the serious issues that every aging family will go through. While a mediator is not a counselor, ideally an Elder Mediator will assist the family in overcoming old patterns of relating that are no longer working, so that the family can come together in a more unified way to confront the new or impending reality.
A family navigating the path of caring for an elder may also encounter unforeseen obstacles. Sometimes, there may have been some condition which has been so much a part of the family’s life that it isn’t even noticed until something else goes awry. For example, suppose one of the adult children has mental or physical disability. That child may have been able to function by living at home or receiving substantial help from the parent. As the parent ages and becomes less able to “take care of" that person, other family members may become more acutely aware that something doesn’t seem right. Perhaps the issue is alcoholism, mental illness, or perhaps there is suspicion of financial misdeeds. Unfortunately, sometimes adult siblings may be forced to address these difficult issues at the same time they are having emotional and difficult conversations with or about their aging parent. These times of crisis are challenging for families. The presence of a neutral mediator can help keep the conversation on track.
Another challenge of Elder Mediation is that various family members may have vastly different perspectives and ideas about what solutions to various challenges ought to be. Sometimes what a parent wants is not what the same as what their adult child would want, and different members of the family may all want or expect different things. Conversations can be difficult, and siblings may be forced to interact with one another under the rules of family system they left behind. The CEO of a corporation may find himself being placed in the role of “little brother" or the sister’s concerns may be dismissed as too “selfish". The Mediator may need to assist these siblings not only in stepping outside their childhood roles and stereotypes, but also to encourage each to consult outside sources for a “reality check" concerning the veracity of their viewpoints.
These are just a few of the issues! Ideally, an Elder Mediator will have flexibility, training, and intelligence to respond nimbly to the unique challenges of each situation.
In selecting an Elder Mediator, seek a well seasoned mediator who has specific skill and training in Elder Mediation. Specialized legal knowledge is important, but awareness of family dynamics and skill in multi-party mediation is also vital. Thus, while many Elder Mediators are attorneys by training, many others have come into the field by way of their specialized background in gerontology, nursing, social work, or counseling. The mediator hopefully can tell you the name of a training institute where they studied this specialized form of mediation, or they will demonstrate an extensive professional background in dealing with Elders and their families. Look for signs that the potential mediator has expertise in (1) legal and financial issues of aging (financial planning, care planning, business succession planning, guardianship or probate administration), (2) multi-party, complex mediation (siblings, in-laws, and grandchildren all may be stakeholders and necessary parties to a mediation), and (3) legal issues related to competency and capacity (an Elder Mediator must take special precaution to ensure that the aged person, who may be a vulnerable adult, is accorded as much autonomy and decision making deference as his or her physical and mental capacity will allow).
Last but not least, a good Elder Mediator will run a tight ship. When emotions get stormy, the seas can get choppy. A good Elder Mediator will calm the waters by keeping the conversation focused and civil. For it is only through listening to one another that a family can hear each other’s concerns, develop solutions that address those concerns, and come up with the best solution to address the needs not only of the aging adult, but of their caregivers and loved ones as well.
As difficult and challenging as conversations about Elder issues may be, wise is the family that has them. While honesty, candor, and open conversation may be challenging and difficult, the more fully the issues are discussed, and the better the quality of conversation, the better the result will be. Yes, Elder Mediation may be time consuming and complex. Often, due to complexity of the issues and numbers of the parties, several meetings are required and two mediators may need to be involved. Yet, consider the cost of doing nothing: lack of care or illness or accidents on the part of a vulnerable loved one, lack of family support for a caregiver, financial exploitation, loss of a business or livelihood due to failure to plan for contingencies, distrust, failure to communicate, incorrect assumptions, escalating conflict, anger, and financial resources poured into attorneys and lawsuits. The stakes are high. Errors can cost not just money, but also relationships in the family and quality of life for the Elder.
A family can pretend nothing is wrong and “fake" peace, or it can sue each other and “break" the peace. Or, it can deal honestly and fairly with the issues and truly, “make" peace. The middle way – the way which acknowledges conflict and then works through it it in an effort to find authentic peace -- is, by far, the best way.