Summer 2008

Keeping Family Peace Through Elder Mediation
By Donald D. Vanarelli, Esq
Aging Well
Vol. 1 No. 3

Aging is a time of transition, and a growing number of elders and their loved ones face the challenge of coping with the physical, emotional, and cognitive changes attendant to the aging process. How we choose to deal with these transitions can have a lasting effect on an elder’s well-being, as well as the well-being of his or her family members and loved ones. Changes aging parents frequently experience can lead to disagreements among family members seeking to ensure that aging parents remain safe and comfortable.

Disputes involving older adults may reach the point where adult siblings believe litigation holds their only hope of resolution. When such conflicts reach a crisis—or, ideally, well before that point—the aging parent(s) and their family members should consider elder mediation as an option for conflict resolution.

Elder mediation is the mediation of any dispute involving elders, their families, or others in their lives. It becomes a particularly attractive option for elders and their loved ones in cases where, for example, elder disputes involve members of an immediate or extended family who wish to maintain a long-term relationship. Despite the existing conflict, family members often recognize that litigation may lead to the destruction of close family relationships.

Preserving Family Ties
Older adults and their family members realize that the resolution of family disputes is more complex than the “win-lose” principles embodied in the traditional litigation process. Such disputes often involve underlying issues, emotions, and conflicts that may have been part of family relationships for many years. Elder disputes frequently involve issues deeper than the parties themselves initially understand, such as unspoken and unacknowledged beliefs and feelings. By acknowledging the complex background of a particular family conflict and providing a forum to address the issues, mediation offers a more creative and comprehensive way of resolving elder issues.

Conflict may arise in many settings. Perhaps one of the elder’s children has always been looked on as the “leader” among the siblings but finds it emotionally and financially draining to be the primary provider of parental support. Perhaps another sibling who lives far away attempts to stay involved by offering numerous suggestions to siblings but is perceived by others as interfering with or dictating other family members’ actions.

Perhaps the elder has made an estate plan that includes unequal distributions to the children because of their varying degrees of financial need or involvement in the parents’ lives. The elder wishes to avoid conflict by addressing this topic with the children but worries that the plan will cause family turmoil after his or her death. Such conflicts commonly arise as parents age and may best be resolved through elder mediation.

Mediation is frequently cited as being much less expensive and time consuming than litigation. In addition, because disputes regarding older adults often involve private personal, family, medical, or financial issues, mediation offers an alternative to the public disclosure that parties in litigation seek to avoid. Therefore, mediation may offer a solution for those considering litigation of elder disputes and those immersed in conflict who feel there may be no hope of resolution.

Compared with the general field of mediation, elder mediation is a specialty that centers on the elder family member whose opinions may be disregarded as unrealistic or overshadowed by the opinions of well-meaning relatives. For this reason, recognition that the elders are the most important participants, and their voices must be heard and respected if the conflict is to be resolved, remains central to its successful practice.

Understanding the Process
As opposed to an adversarial process such as litigation, mediation is a voluntary process in which a neutral third party guides those in conflict toward an understanding of the dispute, control of family issues and emotions, compromise, a resolution to the conflict, and, perhaps, a new way of relating to other family members.

As a neutral third party, the mediator advocates no particular position and renders no legal advice. The mediator also does not impose a resolution on the family or insist that a resolution fit in a traditional legal framework required in litigation. Instead, the skilled conflict resolution expert explores the conflict in the context of the parties’ relationships through a variety of techniques involving questioning, group discussions, and private meetings. This exploration includes addressing the parties’ needs, goals, fears, ideas, perceptions, and values and helps the parties themselves explore options to resolve the conflict. All discussions are confidential, and any agreement must be acceptable to all participants.

The parties involved in an elder mediation don’t need to be limited to immediate family members. It is often beneficial to involve the elder’s or family members’ friends, trusted advisors, financial planners, or others. The mediator strives to ensure that the views of all interested parties are recognized. The parties are not foreclosed from retaining attorneys to assist them during the mediation process if they so choose. However, the involvement of an attorney is not a requirement of elder mediation.

Because elder disputes often involve issues that have strained, or at least affected, family relationships for many years, the mediator must frequently address the complex emotional background of the dispute in order to successfully guide the parties toward resolution. Directly addressing these background issues sets the stage for a more creative and comprehensive way of resolving elder issues.

The goal of mediation is to reach a resolution regarding the issue in conflict while allowing the parties to move forward with relationships that have been not only preserved but also strengthened by the process.

Eliminating Potential Disputes
While there are countless situations in which conflict may arise as a family member ages, elder conflicts typically involve disputes among adult siblings about issues surrounding an aging parent’s changing care needs and medical treatment, independence issues that accompany the aging process such as housing and living arrangements, and issues regarding financial management and the elder’s estate plan.

Care Issues
• How will the family members divide responsibility for the elder’s care needs?

• If one family member is more actively involved in the elder’s care due to other family members’ distance or work or family commitments, will the family member providing primary care be compensated by the elder or other family members?

• Will the elder pay the family member(s) for their time providing care services and, if so, when and how?

• Will the care arrangement be documented in written form, or will a less formal arrangement work best for the family?

• Will the family contribute financially toward the elder’s needs and, if so, in what proportions?

• If the family contributes financially toward the elder’s needs, will those contributions somehow be equalized at a later date?

• Who will be the elder’s healthcare providers; who is in charge of directing care providers; and are there appropriate limits to such care?

Independence/Housing Issues
• Will the elder remain in the home or move to a child’s house, an assisted living facility, or a nursing home?

• Is it advisable to address the elder’s driving or continued control of finances?

• Can the elder’s personal needs be addressed at home through a part-time or full-time home health aide or other support services; who will oversee or coordinate such services?

• Can the family make appropriate arrangements for an ailing parent so that guardianship litigation is avoided?

• Is there a need for a geriatric assessment and the involvement of care mangers?

Estate/Financial/Inheritance Issues
• Can the family openly address the elder’s present financial condition and future needs? Are there sufficient assets to pay for future care needs and, if not, how will such care be paid?

• Can the family address the elder’s estate plan and understand the reasons for seemingly unequal distributions to avoid later conflicts?

• Can the elder’s long-term care needs be resolved through the use of estate documents?

• Can the elder’s needs be provided for while preserving estate assets for the family and other loved ones? What actions are appropriate in seeking the most effective use of limited assets and who decides what they will be?

Of course, the primary focus of elder mediation is the resolution of a particular family conflict. However, perhaps an even more valuable benefit comes from family members engaging in the mediation process itself, which often provides them with the necessary tools to create new relationships and  deal more effectively with future transition and conflict. Elder mediation has proven to be a valuable resource for aging parents, their adult children, and the elder care professionals who work with them.

— Donald D. Vanarelli, Esq, is a certified elder law attorney, an accredited professional mediator, and a founding member of the Elder Mediation Center in Princeton, NJ.