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Elder and Family Mediation Services

by Arline Kardasis and Blair Trippe

What happens when seniors face major life transitions and their adult children are embroiled in painful and unrelenting conflict? Issues like residence decisions, distribution of caregiving responsibilities, safety and health concerns, wills and estates, the sale of the family home, and more can divide a family for years to come. When communication is difficult and critical decisions are put on hold, families may need the help of a skilled mediator to get them "unstuck" so they can move forward.

What Is Elder Mediation?

Elder mediation provides a forum for family decision-making. It is private, confidential and completely voluntary. Mediators facilitate a purposeful and directed conversation in which family members are encouraged to express their interests and concerns. Meetings are informal and are held in locations which meet the family's needs, including private homes, mediators' offices and senior living facilities. The mediator is a highly skilled conflict resolution expert and a neutral facilitator who does not provide advice or "takes sides" in these discussions. The goals of mediation are twofold. First to allow families to create workable and mutually acceptable solutions to their difficult disputes and second to develop communication strategies to enable them to successfully work together to make important decisions in the future.

Why Families Choose Mediation

In mediation, people deal with the problems and issues under dispute in a timely fashion and in privacy. It is a cooperative rather than an adversarial process, so participants are often able to repair their strained relationships. Because family members develop their own solutions, which reflect their family's unique situation, satisfaction with the outcome is quite high and these resolutions tend to be workable and long lasting.

Some family disputes reach the point where litigation proceedings have begun or have been threatened. By employing mediation, families are able to keep their conflict out of a courtroom. Courts take control away from those who need to be involved in crafting the solution. Courts are not charged with developing creative options that can leave all parties feeling heard and satisfied. Because a judge makes decisions based only on his or her interpretation of applicable laws, court decisions often are not satisfactory to anyone in the family and are therefore less likely to endure.

Furthermore, due to the adversarial nature of litigation, courtroom proceedings can destroy already fragile relationships. Accordingly, when families go to court, even the "winners" often lose. In mediation, family members can control both the process and the outcome rather than leaving it in the hands of attorneys and judges. And it means that all family members can be heard. In addition, because the parties control the process, in most cases mediation is significantly less costly than litigation both emotionally and in terms of time and money.

Early Intervention Is Best

Issues related to aging parents are as varied as families themselves. Despite this uniqueness, there are similar financial, legal, and medical decisions that need to be made. These include, but are not limited to caregiving, trusts, wills, health care proxies, and housing choices. Too often these issues are avoided, disagreed upon, and/or ignored, resulting in fewer choices, financial loss, and emotional turmoil for the individual and family. While by no means easy, working through these challenges with an elder mediator can be a real opportunity for families to preserve financial and familial well being.

Mediation isn't simply an alternative to litigation, a "last resort" forum without the lawyers. Elder mediation is just as effective, and often more effective, at the beginning of the decision-making process - when people are fact finding, struggling with options and discovering feelings about their parents, their siblings or other family members that well up and make clear thinking difficult. The process of mediation allows families to develop creative solutions to challenges in a way that the courts cannot. For courts rarely have the time or resources to explore options that would reflect the best interests of the senior while avoiding protracted family conflict. And mediation is efficient. No long-drawn-out proceedings followed by potential appeals and more proceedings...all the while damaging the family, upsetting the senior, and draining finances

And early intervention is always best, before the family is in crisis. When an important family discussion is needed about a developing major life transition, a trained third party neutral can simply convene a family meeting to create the space for everyone to be heard. This type of meeting can strengthen family ties and enable all family members to deal with the changing nature of their relationships and the realities of their situation. It allows family dynamics, including sibling rivalries, to be addressed at a time when everyone is calm and thoughtful decision-making can occur.

It should be noted that these family meetings often involve not just family members but appropriate professionals like lawyers, geriatric care managers and financial planners. These professionals are encouraged to attend as their expertise, coupled with their insights into the family's needs, is usually very helpful.

Disputes Among Adult Siblings

Often, as family members age, family dynamics can become more entrenched and complicated. Conflicts that may have simmered below the surface can boil up and make family conversations very difficult. Siblings, dealing with differences in their own geographic, economic and family situations often find working together challenging and they may have spouses who hold strong views of their own. Thoughtful decision-making can seem all but impossible.

Elder mediators are aware of the stresses and challenges which often arise among siblings when aging parents face inevitable life transitions. Caregiver burnout and inheritance issues are common in families and require difficult conversations. Health, financial and caregiving concerns are serious issues demanding that all family members weigh in with their views. As family members seek to equitably share the burdens and resources of the family, their individual perceptions of fairness are critical and must be aired and considered in a collaborative setting. Families sometimes decide to include spouses and other influential parties in some or all of these conversations.

In mediation, siblings are often able to reach consensus around these and other difficult issues. As a result of the mediation process, they often find that they develop successful communication systems which allow them to successfully address future decisions as a family.

Financial Decisions - How Money Will Be Spent/Invested and Who Will Be Involved

Finances are a part of most family disputes. However, many adult siblings have never spoken about family finances with their parents as this conversation has always been off-limits. Now these families are faced with critical decisions regarding ongoing expenses for a parent's daily living, housing, medical needs and caregiving along with all the extras that crop up. And there are serious decisions to be made about housing, investments, tax planning, insurance, and major assets. Some adult children may have skills and experience in financial matters while others may be fearful or overwhelmed by the complexities of these issues.

In situations where seniors decide to designate a Power of Attorney, they often select either the "favorite child," the one who has been most successful financially, or the one who has been seen to be most attentive to their needs. This choice may cause resentment and conflict among adult siblings.

In mediation, families are often able to discuss finances for the first time. Delicate conversations can be managed by an experienced mediator who is attuned to the sensitive nature of these discussions. If expert advice is needed to determine the best way to manage expenses, investments, taxes, etc, a financial planner or CPA can be invited to join the conversation or can be contacted by family members outside of the mediation.

Residence Decisions

Changes in housing bring up numerous issues. For many seniors, facing the decision to leave their home can be immobilizing. For one woman and her family, the initial decision was made for her to remain at home and hire a part time home health aide. Eventually, this became more expensive due to her changing physical needs and her greater dependence on the aide. While meeting with her financial planner, she explored the question of remaining in her home versus moving. He laid out some of the options and costs, and it became clear that her financial needs would be better served by selling her home and moving to an assisted living facility. Despite this, she made the choice to stay in her home. Meanwhile, her family was growing increasingly concerned about her medical and financial needs. Each time they tried to speak with her about her moving to an assisted living facility, a disagreement would ensue and again the decision would be put off.

Eventually, the family became so concerned that they sought the help of an elder mediator in order to convene a family meeting. The mediator suggested that a geriatric care manager join their discussion in order to advise the family about community resources and housing options. At the meeting, the mother and her adult children were finally able to have a productive, comprehensive and creative conversation. As a family, they crafted a successful plan for her move to a nearby assisted living facility. This decision satisfied everyone's needs and concerns.

Selling the House or Other Valuable Assets

Selling a treasured family home or heirlooms can involve very complicated decision making. When siblings are in different economic circumstances these decisions can be even harder. Insecurities, family dynamics and financial needs can interfere with what is considered "fair." When families have real estate, artwork, jewelry, or antiques of significant commercial or sentimental value, strong emotions are likely to come into play when the disposition of such treasures is discussed.

When one couple decided to leave their summer house to all four siblings to share, they thought they were doing a wonderful thing - insuring that all could keep their happy memories and create more for their children and grandchildren. The reality, however, did not coincide with the vision. One sibling, the younger son, did not have the money to pay his share of the taxes and maintenance. The elder daughter lived far away, had her own summer home, and had no interest in keeping the house. The younger daughter was thrilled to keep the house and frequently use it with her children. The other son, who had no children, was dissatisfied with the situation because it seemed that whenever he wanted to use the house, he found that his sister was there with her kids and their friends. The sister who wanted to keep the house did not have enough money to buy-out the others. If they went to court, the house most likely would end up sold and relations between the siblings would be inexorably damaged. Through mediation they were able to come-up with a plan to share time, costs and get some rental income in a way that was deemed fair by all and preserved their relationships and those of their children.

Inheritance Disputes

It is the hope of every parent that, after they are gone, their children and grandchildren will remain close and provide love and support for one another. Looming estate battles can threaten this dream. The best time for families to work out such issues is before these battles become a reality. And Elder Mediation can provide a safe setting for these highly flammable conversations. With the help of an elder mediator, adult siblings and their aging parents can, together, find ways to create a plan that reflects the parents' values and "fairly" distributes their estate while protecting familial bonds.

In one family, the parents and their adult children began to have informal family discussions regarding estate planning and inheritance matters. Together, they reviewed their major assets, including a second home, stocks, and considerable savings. The children disagreed with each other and their parents on how to divide the assets and decided to contact their parents' lawyer. The lawyer then informed his clients, the parents, that their children had contacted him and that they had questioned the soundness of their parents' decisions. This hurt and angered the parents, causing them to terminate all discussions without creating any estate plan. From here, other costly conflicts and delays arose until one of the children contacted a mediator. With the help of a skilled mediator, trained to deal with such disputes, this family was able to have several important conversations about their individual needs. They were ultimately able to mend their relationships and put into place a sound financial plan that satisfactorily addressed everyone's interests.

Everyone acknowledges that contested wills are among the most dreaded of court battles...and they can go on for years often draining the pool of assets that are under dispute. Yet, adult siblings often have strong feelings about how their parents ought to bequeath their estate and these feelings are often in conflict with some or all of their siblings. A daughter who has been the primary caregiver for her father may feel that he should recognize her efforts in his will. A son who has had financial or medical setbacks may want some extra security beyond that provided for his wealthier siblings. In families where parents have contributed to the costs of some of their children's or grandchildren's education, home purchases, or weddings other family members may feel that they should be "made whole' in some way. While one or both parents are still living, they may be burdened with the awful challenge of figuring out how to create a "fair" estate plan that honors all family members and indicates their equal love for each one of their heirs. This is no easy task, especially when mom and dad are subjected to lobbying efforts by some of their adult children or grandchildren. A skilled elder mediator can navigate the treacherous waters of such complex and emotionally volatile discussions.

Medical Treatment Decisions

It is often not clear what the best medical route is for a particular senior. Sometimes siblings differ in their views on what would be "best" or what the senior would "want." In these cases, mediators can help all family members articulate their interests and fears in a safe, private setting. All parties have a voice at the table where expert medical advice can be shared and reviewed, concerns can be voiced and options can be discussed in a calm, non-threatening setting.

Guardianship

Sometimes one daughter or son sees something their parent can no longer handle as a sign that they no longer can handle anything. They then decide that they must take control of all the elder's activities by means of a guardianship. What often happens as people age, however, is that there is an inability to handle certain aspects of life while others are fine. For example, a senior who is threatened with foreclosure may be perfectly capable of living alone and scheduling his activities but needs help with bill paying. Mediation can give that elder the opportunity to show his children that he does not need restrictions but just a little help. This type of family meeting can prevent or limit unnecessary guardianships.

Post-Appointment Decisions (Guardianship)

Even if a court approves a petition for guardianship, the family conflicts may not end. Mediation can be very helpful to family members dealing with the day-to-day needs and ongoing decisions after guardianship has been established. Mediators can help the guardian or ancillary caregivers to cope with unexpected situations and/or unanticipated needs.

When is Elder Mediation Appropriate? When Is It Not Appropriate?

Mediation is an appropriate means to resolve any conflict where the parties voluntarily participate in the process and are motivated to reach a settlement. Elder mediation helps families to successfully grapple with issues such as caregiving for aging parents, estate disputes, safety and health concerns, and decisions regarding the family home and the best place for parents to live. A core value of Elder mediation is the protection of the rights and integrity of seniors. Elder mediators act as neutrals but look to families to consider ways to maximize their senior's independence whenever possible. Mediation is not appropriate and will not be allowed to continue if the mediator finds that there is coercion, abuse or neglect. In cases where the elder has cognitive impairment or other limitations in his or her ability to fully understand and participate in decision-making, the mediator will insist that an appropriate advocate for the elder (such as an attorney, a social worker, or a geriatric care manager) be present for all conversations and participate in all decisions which would impact the senior.

Looking into the Future

The practice of elder mediation is growing in response to changing demographics. The average middle aged adult now has more parents and in-laws than children. And as these baby boomers age and government resources diminish, more and more of the responsibilities of eldercare will fall upon families. Given these realities, most families will eventually be facing the kinds of challenges and stresses which can lead to conflict and create obstacles to reasoned decision-making. Over the last twenty-five years, the public has increasingly embraced divorce mediation as the most reasonable means of resolving the issues surrounding the dissolution of marriage and now elder mediation is rapidly becoming known as a vital resource for aging families and the professionals who work with them.