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Applying family mediation to the challenges of elderly parents

By Drew Peterson

For some reason, no doubt related to my age, I have had a number of experiences over the past couple years with mediation of cases involving elderly parents. The cases have also led to my recognition of a number of recent articles on the subject in the mediation literature. As a result, I have become much more aware of the appropriateness of using family mediation in estate and guardianship cases, as well as other cases involving elderly parents.

Personal Experiences
In one recent case, I mediated a will and estate dispute between five adult children who had grown up in two separate family units, with minimal communication all around. By the simple method of getting them together in person and by phone, they were able to face diverse concerns that they had based on past miscommunications and realize that they all had the same goals. The outcome was a totally satisfactory and rapid resolution of an estate which looked initially likely it could engender years of litigation.

In a second case, while not quite as satisfactory for all parties as the first, three siblings were able to successfully resolve the immediate issues of care of their elderly parents. Though disputes remained between the siblings, they all at least got a chance to tell their story and to be listened to. As a result, the siblings were enabled to make a decision that none of them was truly happy with, but which all of them were willing to support.

Finally, and most memorable for me, I was able to use the mediation method within my own extended family, to get all of my siblings and an elderly parent on board with a care plan for a second elderly parent going through a health crisis. While not exactly a true mediation (I served in a mediator-like role, though obviously not neutral), the process worked excellently to confront issues of care and estate-planning, which we realized in retrospect, should have been dealt with years before. By getting all the siblings on the same page, we were even able to negotiate directly with our caretaker mother, who we were all afraid could be endangering her own health under the stress of caring for her spouse.

Mediation in Estate Settlement
A recent article on Mediate.Com, by Rikk Larsen, is entitled Mediation in Today's Estate Settlement World ( Larsen summarizes key benefits for the use of the mediation process in the estate settlement processes. To wit:

  • Mediation facilitates effective communication between family members at a time when such communication is critical to success.
  • Mediation allows key emotional issues to be aired in a supportive environment. By its very nature, mediation can create an environment where complex issues can be shared and discussed before they escalate out of control.
  • The power of neutrality in mediation is substantial, and should not be underestimated. While a mediator should probably be familiar with the key elements of legal, financial and tax planning related to the estate settlement process, the mediation process has the ability to rise above the narrow legal focus of those disciplines.

Unfortunately, Larsen concludes that the use of mediation in the estate settlement process remains uncommon. He believes that the gatekeepers to the process, the lawyers, financial planners and CPAs who traditionally get the first call to help families through the estate settlement maze, rarely suggest mediation to their clients. To change this, Larsen suggests that those of us in the mediation field should:

  • Convince the traditional estate settlement professionals that mediation is not a threat but a positive team option that can make their job easier and provide better services to their clients.
  • Work with the probate courts to include mediation as a formal court approved option.
  • Continue general marketing to the public by word of mouth, published articles, and involvement in professional associations.

By doing so, Larsen believes mediation can make a major and beneficial contribution to the estate settlement process.

Mediation in Estate-Planning
A second article in Mediate.Com, by David Gage and John A. Gromola also published in the Elder's Advisor; The Journal of Elder Law and Post-Retirement Planning, discusses the use of mediation in the estate-planning process. Gage and Gromola assert that with the use of mediation the estate-planning process could be less prone to conflicts, and a more rewarding and rich experience for everyone involved.

According to Gage and Gromola, a big part of the problem of effective estate planning is a lack of communication and miscommunication between family members, as well as between family members and their advisors. Changing the patterns of communication that typically occurs can make a huge difference in the family's experience as well as in the advisors' experience of the process. Parents need to be encouraged to have serious conversations between themselves and their adult children and other heirs about settling estates, dividing property, and their own dying.

People do not typically explain their thinking or their feelings well, which can lean to vast room for misperceptions to flourish. People also have trouble listening to each other, and make assumptions about what they are hearing. Avoiding such conversation, however, can lead to a host of other problems.

In our culture, the authors assert, there seems to be an underlying assumption that people are better off not discussing their intentions with family members. It is particularly difficult for us to discuss death on any terms, whether our own death or that of other family members.

Such difficulties in communication among family members lead to problems for the estate-planning professionals as well, especially in dealing with families and networks that do not necessarily have solid, healthy relationships. Conflicts of interest can arise between such family members, especially in estate-planning with a couple who are not in sync, thereby placing the estate-planning professionals themselves in jeopardy of malpractice exposure, or worse.

According to the article, mediators are uniquely positioned to help the estate-planning professionals with the preparatory work of clarifying the real needs and interests of the parties and their heirs, thereby increasing the likelihood that everyone will be comfortable and satisfied with the plan as developed.

The mediation process is designed to achieve successful resolution of highly emotional and contentious conflict. The mediators are neutral and work for the common good of all of the people involved. They may work for the entire family even while recognizing the different roles, authority and position of the various family members and other heirs.

Mediation is an informal, flexible process that encourages parties to create consensus agreements that have the best potential or working in the long term for everyone involved. The fact that mediation is confidential and cannot be used in later court proceedings also encourages people to be open and candid through the mediation process. This is often otherwise not the case.

Mediating Issues of Parent Care
Another article on point is found in the Fall 2001 Mediation Quarterly, entitled Resolving Middle-Age Sibling Conflict Regarding Parent Care, by Deborah B. Gentry. Gentry asserts that sibling and other family conflict is inevitable when confronting elderly care decisions. Mediation provides substantial benefits for resolving such conflicts, although such benefits are not unlimited.

Focusing primarily on adult sibling conflicts regarding their elderly parents, Gentry points to the following as possible points of contention:

  • Old rivalries and power struggles together
  • Diverse outcomes and desires
  • Limited resources of time, space or money
  • Incompatible expectations or standards about how to get things done
  • Different philosophies and values
  • Power balances, such as those related to gender, birth order, age, access and control over resources and/or status as an "insider" or "outsider."

Mediation provides the family, heirs, and other related individuals with a new and different approach to resolving such interpersonal conflicts. While not perhaps appropriate to all situations, especially where another problem solving method has been used historically and is the method of choice for all disputants, mediation provides a viable alternative where there is no such unanimity of approach by the involved parties. Gentry concludes by noting that though the sibling pair relationship is unique, the potential for closeness or distance is present just as it is with other family relationships. Conflicts between siblings surface regularly though life. Such conflict need not be feared or avoided, but can be an opportunity for growth. While mediation should not be considered a panacea for such sibling disputes, its many potential benefits should be considered.

Mediation is time-limited, goal-focused conflict resolution process. Benefits that can result include a sense of having one's concerns genuinely listened to, modeling of improved communication skills, a sense of mutual ownership in resolutions reached, and a greater willingness to abide by such decisions. All of these benefits can be extremely useful in negotiating issues involving elderly parents.

In sum, mediation is highly recommended as a component of estate and guardianship proceedings involving elderly parents. As is true in other substantive areas of mediation, there is little to be lost and much to be gained in by incorporating mediation into the resolution of such legal issues.


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