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Mediation is an informal process in which a neutral third-party assists with
resolving conflict and finding solutions that will work for everyone. It is a voluntary process and may be used before someone resorts to a lawsuit.
Mediation also may be used when a lawsuit has been filed. Below are specific descriptions of how mediation may benefit families dealing with an
aging family member or families facing divorce.
Elder and Guardianship Mediation
Are you involved in the care
and well-being of an older parent or family member? Are you or the family
member struggling with how best to meet the needs of the person as he or she
ages? Are you having conflict with another family member over how to meet
this person's needs?
In the coming years, the
aging of the baby boomers will mean that many children and families of aging
parents will be facing tough decisions on how best to assist their loved one
with the process of aging and quality of life decisions.
If you or someone you know
is struggling with these decisions, you may want to consider hiring an elder
mediator, someone trained and knowledgeable in the issues facing the aging
and their caregivers.
- assures maximum retention of independence and autonomy for older adults
- reduces strain on family members by using all available community services
- helps maintain healthy family relationships
- includes the older person in the decision-making process
- prevents loss of all personal, contractual, and legal rights
- provides privacy and avoids stressful court hearings
Elder mediation is a voluntary
form of conflict resolution in which a neutral, impartial person assists the
family in finding a solution to a family problem involving an older adult.
The mediator facilitates the process but does not make decisions for the family.
The first contact with the mediator does not necessarily have to come from the
elder involved.
During the mediation process,
all family members have an opportunity to share their concerns about the situation
and their individual interests and needs. After everyone has had an opportunity
to be heard, and people begin to understand the concerns and needs of other
family members, the mediator helps the parties find mutually agreeable solutions
for the issues with which the family must deal.
Families who participate in the
adult guardianship mediation process prior to appointment of a guardian almost
always find a less restrictive option than full guardianship. Some families
participate in mediation to resolve problems that occur after the court has
appointed a guardian. Adult guardianship mediation is also concerned with
solving underlying problems associated with elder care and may address such
issues as sibling rivalry, safety, independence, inheritance, and the wasting
of assets.
Elder mediation professionals
are familiar with the aging process and the issues involved and are connected
with the network of local resources and service providers available to elders
in the community. Elder mediators are familiar with elder abuse concerns and
relate allegations of elder abuse to the appropriate authorities. Mediation
would not occur between an elder and another person if elder abuse has been
substantiated. However, self-neglect does not disqualify a case for mediation.
The mediation process can help
to preserve, restore or even improve relationships among the parties involved
as the process provides a non-adversarial approach to resolve the dispute.
Since the elder is often
able to participate in the mediation process, either directly or with the
assistance of an attorney or other representative, the elder's dignity is
preserved by having an active voice in the choices that are made. Elder
mediation provides an opportunity for elders to talk openly and without
fear about values they hold and risks they are or are not willing to take.
The elder can acknowledge his or her needs for assistance during mediation
without worrying that it will lead to a judge's ruling of incapacity.
Mediation is particularly
effective in exploring the least restrictive alternatives to the appointment
of a fiduciary if capacity is a question. Mediation may then provide more
alternatives than a hearing before a judge. Elder mediation can precede a
consultation with an attorney when family members are, for example, arguing
over a parent's care plan or finances. Attorneys often participate in mediation,
representing the elder or another participant or serving as legal advisors.
When a court determines that
a person is legally incapacitated or incompetent and unable to attend to their
own personal or financial needs, the court may appoint a guardian for that person.
The Court then gives the guardian the right to make decisions for the
incapacitated person. The guardian may decide where the incapacitated person
will live, how the finances will be managed, and even when medical care is
appropriate.
Caregiving 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,
will the primary caregiver be compensated by the elder or other family members?
- 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 be somehow equalized at a later date?
- Who are to be the elder's health care providers, and who
is in charge of directing care providers?
- Can the family openly discuss and come to an understanding and
agreement regarding carrying out the elder's wishes with respect to end-of-life
decisions (DNR Orders, burial and funeral decisions, etc.)?
Independence/Housing Issues
- Will the elder remain living at home, move to a family member's
house, an assisted living facility or a nursing home?
- Is it time to address the elder's continued control of
his or her finances, or his or her driving?
- Can the elder's increased needs be addressed through a part-time or
full-time home health aide, or other support services at home? Who will oversee or
coordinate such services?
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 care be paid for?
- Can the family address the elder's estate plan, and understand the reasons
for seemingly unequal distributions, to avoid conflicts later?
- Are there ways the elder's care needs can be met while preserving
estate assets for the family and other loved ones?
Social life and Activities
- Are the children concerned about potential undue influence by the elder's new friends
and, if so, can the parties come to an arrangement in which the elder is adequately
protected from potential financial abuse, while respecting the elder's right to associate
with people of his or her choosing?
- Can adequate arrangements be made so that the elder is able to safely
continue social activities that he or she enjoys?
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Family Mediation
In family mediation, the spouses
hire a neutral third party to assist them in resolving conflict and reaching
agreements. The mediation process redefines conflict as a family problem rather
than one person's problem. The emotions of divorce are managed so they do not
hinder the communication process. Better communication leads to better agreements.
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The mediator may or may not be a
lawyer but should be trained in dispute resolution techniques. The mediator does
not represent either party and cannot provide legal advice. The participants may
or may not be represented by attorneys.
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As with collaborative family law,
the goal of the mediator is to get the people to work together in a cooperative,
non-adversarial process with a mutual goal of reaching a fair settlement of all
issues. This process encourages creative problem solving, win-win negotiations,
and resolutions that meet the needs of all members of the family.
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The participants meet together
with a neutral and objective professional who is trained to help parties solve
problems in a cooperative manner. Attorneys may be present if they are
representing the parties.
The mediator guides the communication
process so that everyone has a chance to be heard and contribute to the outcome.
The mediator helps participants define the issues and tone down the communication
process so a rational discussion can take place and the best possible agreements
can be reached. The mediator may offer suggestions and help parties develop options
to resolve the issues, but the final agreement is defined by the parties. Some issues
or all issues in a dispute may be resolved through mediation.
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Mediation is a joint, cooperative problem
solving process that only works if both spouses participate. Participants do not need to
feel friendly toward one another but must be willing to work together to find solutions
that will be fair and meet the needs of all family members.
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Mediation is NOT a substitute for independent
legal advice. Lawyers may still be necessary to help participants understand the law, make
informed agreements and write up the final agreement. The mediator's role is to facilitate
the communication necessary to reach agreement.
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When the parties are capable of fashioning
their own solutions, there is shown to be a higher rate of adherence to the solution than when
a solution is designed by a third party such as a judge.
Mediation can result in resolution of disputes
without destroying family relationships.
This can be quite valuable when there will
be a need to maintain a co-parenting relationship with the other party and/or when preserving
as positive a relationship as possible is important based on a party's values. .
The mediator may help the parties consider
creative options that meet their specific circumstances.
The parties maintain control and direct
involvement in the process, and are assured that neither party has to face the risk or fear
of an unknown, imposed decision.
Matters involved in the case are comparatively
much more private than when using litigation.
Family mediation allows parties to explore
creative solutions.
Mediation is likely a lower cost solution.
Mediators in private practice usually
charge by the hour and fees are typically shared by the parties. Mediation is often less
costly, both emotionally and financially, than litigation..
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