By Barbara Sunderland Manousso, Ph.D., M.P.H., NCG, TCG

With the population aging at an unprecedented rate, families are more frequently encountering strained situations about how to best care for a loved one who no longer is able to drive, live alone, requires assistance with daily living, or requires a new level of medical care.   Even in the best of families, communication can shut down or never open up to quality decision making.

“My brother has been handling mom’s money the past two years, but my sisters and I think that he is using mom’s money for his benefit.  How do we find out? Can you help us?”

“My father is 92 and still wants to drive.  He can hardly see over the wheel.  Every time my siblings and I bring up the matter, dad screams that it is none of our business.  However, it will be our business if he gets killed or he kills someone else with his car.  What can we do?”

“My mom needs assisted living, but won’t leave her house.  How can we convince her?”

“My parent is in a nursing home and isn’t getting medications on time and has developed new health issues.  The administrator told me that I’m crazy.  I want to sue them.  Can you help?”

These are typical calls to my elder care mediation practice.  These family dramas need immediate resolution, not a lawsuit that could possibly take years.  Mediation is an opportunity to provide families guidance and timely assistance in having a quality conversation that can address, negotiate, and resolve issues related to aging and family communication.

What is mediation?

Mediation has been recognized in Texas and nationally for over twenty years.  In the United Kingdom, elder mediation has been a family tool for over a generation.  In the past few years, most cases that go to family and probate courts are requested by the judge to be mediated first.  Mediation is an informal, confidential process held in a private setting in which a neutral third party, a mediator, helps people to better understand their individual interests and needs.  An experienced, certified mediator can empower families to recognize and implement workable solutions to their problem(s).

Mediation is different than other alternative dispute resolution processes in the following ways.  The basic idea behind mediation is that a dispute is resolved through an agreement among the parties, instead of a resolution mandated by a judge or negotiated by attorneys.  First of all, the parties establish their own outcome, so the result fits their cultural expectations, needs, and family nuances.  It provides an opportunity for a win-win outcome: There doesn’t need to be a winner and a loser.   Negotiation involves a third party that physically separates the contending parties and shuttles ideas between them.  Arbitration uses one or more third party neutrals that hear the facts and make a decision on how to resolve the conflict for the parties, like a judge might.  Litigation is far more expensive and time consuming than mediation and involves a judge who makes the final decisions for the parties with the aid of attorneys representing the involved parties.

In mediation, whether it is voluntary or court ordered, the parties might, or might not, be represented by attorneys.  Usually, parties attend mediation without an attorney, if they even have hired an attorney.  Then, if an attorney attends the mediation, their role is of advisor, not as a direct participant to the conversation.  Mediation is a process for the parties to talk to each other and to make decisions that will work for them.  The mediation is confidential in either case and the mediator does not impose or make decisions for the parties or offer legal advice.   Using mediation as a means of discovery is forbidden.

The mediation process has several advantages. A main advantage is that the parties retain control over the decision(s) they choose to agree to in writing.  Also, results are generally win-win because outcomes fit the needs and interests of the opposing individuals or family.  Because the outcomes also reflect the party's choices and priorities, in turn, there is a higher level of compliance with the written agreement than with court judgments.

Why is Elder Care Mediation Different from Other Family Mediations?

First of all, in elder care mediation, the issue involves the care, safety, and comfort of someone over 50, although usually much older.  End of life issues are not hidden.  There have been cases that the “senior” was under 50 years old, but impaired by a stroke, heart problems, or early dementia.

Second, the case usually is initiated by the children of the senior.  The scenario is that the kids see a downward spiral in their family’s communication, or new communication skills need to be established.   End of life decisions are unchartered territory for most families.

Third, the mediation might not take place in a business office.  It is not uncommon for elder care mediators to convene the mediation in a long term care facility or the family living room.  Some elder care mediations are held at the family dinner table with favorite foods on hand.  Sometimes the elder might be in bed clothes.

Fourth, flexibility is a key to a successful mediation.  The children might be in different parts of the country, so video cams, conference calls, and email might be tools for communication during the mediation.  Mediations can also be held in the evening and on weekends to accommodate family schedules and to lessen the burden on parties.

And, fifth, but my no means conclusive, elder care mediation’s goal in finding resolution embraces strengthening family communication, not pitting one family member against the other.

Cumpara Revista Medierea Nr 3-4/2010