Many people with aging parents may be all too familiar with the following situation. A decline in the functional status of an elderly parent forces the need, sometimes suddenly and unexpectedly, for a family to have to make major complicated decisions about the parent’s well being. Forgetfulness and physical difficulties performing household activities such as cooking, cleaning and climbing stairs trigger the need to assess care giving and changes in living situations. Driving mishaps such as a fender bender or difficulty in reaching familiar destinations prompt consideration of whether it is time to “take the keys”.
DIFFICULT DECISIONS FOR FAMILIES
Although there has been a growing awareness among the adult children of potential problems, there may not yet have been any serious collective discussion or planning. The family members are geographically spread out and have different levels of involvement with their parents and knowledge about their healthcare and financial situation. The adult children have dissimilar financial and family circumstances that create diverse perspectives on care giving roles and financial management and asset distribution.
In view of the medical, legal, financial and emotional challenges of the aging transition decisions that have to be made, the potential for disagreement and conflict among the family is high. There is the inevitable tension between the parent’s desire for independence and their increasing need for support. Those who have been providing for most of the care needs may be resentful of those that have not and believe that they should receive “caregiver equity”. Old issues of sibling rivalry and parental favoritism can rise to the surface, making already difficult communications that much harder.
According to elder law attorney Martin Womer of Maine Center for Elder Law in Kennebunk, Maine, dysfunctional communications among family members is apt to occur “when it is about to become expensive” due to the need for change in the parents living situation, such as the provision of extensive care giving or moving to an assisted or full care living facility. As Womer explains, “What you often see is a sibling who has been uninvolved in what is happening, suddenly wants to be an equal participant or take control of the situation to protect his or her inheritance. If the communications about the decisions that need to be made then become confrontational or are avoided because of the tension, there can be serious adverse consequences, including litigation which destroys family relationships.”
USING MEDIATION TO ADDRESS ELDER ISSUES
To deal with these difficult communications and decisions, families are increasingly turning to Elder Mediation as a process to help avoid and resolve disagreement. The growing national trend is not surprising when considering that the 85 and over age group is the largest growing demographic in the United States and there are over 20 million adult children acting as caregivers, 60% of whom are still working.
Elder Mediation provides a forum for the family members to be heard, learn what is important to each participant, face disagreement, find common ground and develop creative solutions. The process is nonbinding and confidential, participation is voluntary and decisions are made by consensus, not by the mediator. The mediator is a neutral party skilled in listening, diffusing tensions and identifying the interests of the participants. When there is no professional neutral present to help guide the family members towards finding common ground, family meetings can expose more pain than resolve problems.
Mediation can be particularly helpful to elder law attorneys faced with the potential conflict of representing the senior, but necessarily having to deal with family members whose positions conflict with that of their client. On behalf of the senior, the attorney often works closely with one of the adult children who has been most involved with their parents’ situation. When communications occur between the attorney and other siblings with differing views on decisions that need to be made, the issue of “who is the client?” is raised for the attorney. According to Womer, “While the attorney can explain the options and legal ramifications to siblings not allied with their parents, they cannot advocate their positions, even if they have merit, without risking a perceived or actual conflict, and their ability to advocate for their client can be compromised by their effort to achieve consensus,”
HOW ELDER MEDIATION WORKS
Because it typically occurs when there is disagreement over aging parent decisions that have not yet risen to the level of dispute were attorneys have been hired or litigation started, the mediation process is different from that which is commonly experienced in pending probate or other types of litigation. Mediation in those settings typically starts with the submission of position papers with detailed factual and legal analysis by the opposing attorneys. At the mediation session opening presentations are made with all the parties together followed by back and forth negotiations conducted by the mediator meeting with the parties separately.
The elder mediation process begins with an intake session between the mediator and family member, trusted advisor or referring professional who has initiated contact. Preliminary background information is obtained and there is a discussion of who should participate and how payment will be handled. The decision to move forward with the process and the details are set forth in a participation agreement signed by everyone.
Once the agreement is in place, the mediator conducts private sessions with all of the parties, usually by telephone. The sessions provide an opportunity for a confidential exploration of each party’s interests and their view of their parent’s needs and the position of others. Womer says “that it is this type of communication, which can be critical to finding out important family dynamics, that an elder law attorney cannot have with family members not allied with their client”. Information is obtained to identify any behavioral or relationship issues that need managing at the group session and any potential neglect or abuse.
Based upon the information developed from the private sessions, the mediator prepares an agenda and suggested topics list for the mediation session. Although the session is run as a group session, the location will have extra rooms for the parties to meet privately with each other or with the mediator to help deal with confrontational or emotionally charged communications and to conduct separate negotiations if necessary. Depending upon their physical and mental health, the participation of the parents can range from not at all to being present for the entire meeting.
The meeting proceeds with a focus on identifying interests and facilitating understanding between the participants. It typically lasts a half day, but can be shorter or longer or continued to another session as may be agreed. To the extent that understandings and agreements are reached, the mediator will work with the participants to draft language for memorandums of understanding and agreements which are helpful to solidify decisions and provide guidance for communications on future issues. Attorneys participating for some or all of the parties at the session or available as a resource can enhance the progress towards settlement by explaining legal issues and reviewing and drafting agreements.
Although some may be skeptical and resistant to the idea of paying “an outsider to tell them how to run family business”, Elder Mediation can save families from the potentially devastating financial and emotional costs of waiting too long and then having to make decisions in “crisis mode”. Attorney Womer believes “that it is an underutilized opportunity to resolve issues and overcome communication problems that can create ticking time bombs”. The process allows everyone to be heard and express what they want to happen in a safe environment. It helps the parties to be open-minded, respect each other’s viewpoints and develop a sense of optimism that the group can come up with good solutions, all of which are important to making the best decision for the parent’s well-being while preserving family relationships. Because the relationships involved and the decisions that need to be made are continuing, the value of Elder Mediation goes beyond the resolution of pending issues by creating a blueprint for future decision-making.
About the blogger:
Peter Schroeter is an attorney with Shaheen & Gordon, PA., where his practice focuses on Mediation and Dispute Resolution Services. He is a member of the National Academy of Distinguished Neutrals, rated AV by Martindale-Hubbell and recognized by Best Lawyers in America in Mediation
