Mediation for Elders
by David River, AP, CSA

Two hours into their first mediation session, Judy looked at her brother and said, “Where were you when mom was dying?! Why should you get anything?” Stunned, Tom looked backand said, “You never asked for help. I always thought she should have moved into a nursing home.”

Within an hour of this exchange during mediation, this brother and sister had settled their dispute over their mother’s estate – but not after spending $60,000 in attorney’s fees and countless time and emotional energy it in a two-year court process which left them with no conclusion and very little inheritance. It certainly failed to honor the memory of their mother.

This example is typical of the conflict that surrounds elder and end of life decisions in families, and wastes countless resources – both financial and emotional – that could be saved if potential disagreements could be aired early and transformed into unified agreements.

The American Playwright Kin Hubbard wrote, “There is plenty of peace in any home where the family doesn't make the mistake of trying to get together.” Necessarily, nothing brings families together like the old age and end of life of a parent. This is the time that sixty or eighty years of a shared family history is brought together via spouses, parents, children, brothers, sisters, and grandchildren - and expected to function as a cohesive unit.

Family histories are seldom clean. To name a few, children can be left with impressions of favoritism from parents towards their siblings, and young efforts to win affection often remain a source of anger no matter how old people become. The adult child who takes care of parents until the end may receive the same amount from the inheritance as the child who has not spoken to her parents for 20 years; or the adult child who has not been involved in his parents’ lives may show up at the end of life to care for his parents, raising suspicion and anger in the child who was there all along. Parents divorce and remarry, creating whole new family structures and original families may not think that extended families are entitled to have a say, much less a share, at the end of life.

There are as many potential problems as there are families.

Given this, the assistance of a skilled mediator can be the best use of a family’s resources to address and resolve these potential problems of a shared family history.

What is mediation?

Mediation is a confidential process of dispute resolution based on resolving disputes and building agreement. It is completely voluntary, meaning that people must first agree to participate in mediation and then to stay. A mediator does not have the power to force people to sit, talk, or negotiate. In the end, a written agreement, called a “Memorandum of Agreement,” is developed and signed by the people who participated in the mediation. This agreement becomes the basis for all appropriate planning documents, including wills, trusts, healthcare proxies, living wills and other legally binding documents; and also describes less formal – and often equally important – understandings and agreements between family members.

The fact that mediation is a voluntary process minimizes coercive tactics, builds goodwill and trust among family members, and insures that agreements are true agreements. In contrast to court decisions, which are fought and/or ignored by the losing party, mediation agreements boast a 90% compliance rate (Elden & Ziebarth, 1999).

A good mediator will help the family to employ a range of appropriate professionals – financial advisors, estate attorneys, healthcare advisors and others – in order to make the best decisions possible.

When is mediation appropriate?

In an ideal world, parents would hire a mediator while they were relatively young and in the process of planning their later years. They would do this to make sure that their wishes for healthcare and distribution of their estate is known and agreed to by their whole family. The mediator would dig in to find out what disagreements and disgruntlements may be underneath the surface that may later subvert the wishes of the parents. Mediators help families to have an honest discussions, and I’m sure that 90% of problems would be preempted if this were the common practice.

In the real world, families rarely seek the services of a mediator until the situation has deteriorated badly – often after the parents are able to have a say. Even then a good mediator can be extremely effective. In the example I started with, mediation helped the family reach resolution in 5 hours on a Friday morning in comparison with 2 years of a frustrating court process.

A third way in which mediators can be used is over the long term – in the way you would use a family doctor. Since the aging and end-of-life process is rarely short, a mediator can be on call to a family for several years, available and trusted to help a family over the hurdles of difficult decisions when they arise.

It is not uncommon for a family to grow closer through the mediation process.

Finding a good mediator?

Mediation is an unregulated profession, meaning that anyone can advertise mediation services, no matter their skills or training. This puts the burden on you to find a capable professional. The best indicator of a good mediator is a personal referral. Lacking that, here are some things to ask:

• How much training or education have you had in the mediation process?

The New Mexico Mediation Association suggests 100 hours as an indicator of an intermediate level of training – you will want someone with significantly more than this.

• How much mediation experience do you have?

Likewise, the New Mexico Mediation Association suggests 100 hours at the mediation table as an intermediate level of training. Given the difficulty of sorting out and working with family dynamics over several generations, you will want someone with upwards of 500-1000 hours of experience, minimum.

•  Do you have any certificates or degrees related to mediation?

The New Mexico Mediation Association offers a “General Practitioner Certification” and the national Association for Conflict Resolution offers the “Advanced Practitioner in Family Mediation” designation. “Certificates” someone may receive from a training course don’t mean much.

Remember that the practice of mediation is very different than the practice of law or therapy. You don’t want to end up in “mediation” with someone who tells you what to do (typical of attorneys) or, alternatively, gets lost in investigating the roots of family dynamics (typical of therapists). Effective mediators have invested significant time and energy specifically in the mediation process, and are able to bring groups to consensus quickly – even in the face of the most difficult decisions.