CSA Blog
Mediation: Finding a Way to Resolve Family Conflicts
Family fights over the care, legal, and financial issues of aging relatives, can have disastrous results. Using a skilled mediator can make all the difference in achieving peace, harmony, and resolutions. Click here to read blog post.
Family disputes can be among the most painful of all. People who are related by blood or
marriage may have such close ties that they fully understand not only how to do the right
thing for each other, but also how to hurt each other. When caregiving is involved and financial issues come up, it can bring out either the best or the worst in families.
Emotion is deep and old resentments can surface. Some families turn to dispute resolution with an outside professional to assist them when they get so mired in conflict they cannot find their way out.
The following two examples of actual cases (names changed) illustrate how families deal with these distressing conflicts. Mediation was a successful alternative for one family, enabling them to resolve their differences for the sake of an aging parent. Note the
choices each family made and the effect on the outcome of the conflict.
The Case of the Three Brothers
Three brothers are engaged in battle over their mother, Margaret’s, living situation. She has severe dementia and can’t care for herself independently. She has run out of money. Her only remaining asset is her home and she wants to stay there.
The oldest brother, James, seized power over her finances from the middle brother, Paul. James convinced his mother to appoint him the power of attorney and the agent on the healthcare directive, and displaced Paul, who had always been on both documents. Margaret wasn’t competent to sign anything when James made this move, but he didn’t seem to care. That infuriated Paul. Little brother Joe was somewhat passive, but sided with Paul. The three never got along very well, even as children, and their communication did not improve as they grew up. They largely avoided one another until now.
Without communicating with his brothers, James decided to move Margaret to an assisted living facility that cared for people with dementia. It would be in her neighborhood, she would have her own room, and her house would be sold to pay for it. A deposit was paid and the move was set.
When Paul heard of this, he became enraged, told Joe, and they both threatened to sue James. In response, James found a lawyer and began guardianship proceedings. There was no money in their mother’s checking account to pay the lawyer, so James promised
the attorney that she would get paid when the house was sold.
Margaret’s long-time estate attorney, not the guardianship lawyer, suggested mediation. She urged the siblings to stop upsetting their mother and each other by using a neutral person—a mediator—to help them try to reach some agreements.
This sounded like a good solution. With the mediator’s guidance, they could figure out a way to be more civil to each other and work toward a less aggravating future while caring for their mother. However, James refused to go to mediation. The guardianship case continues to move through the courts. Thousands of dollars will be needlessly wasted
on litigation that pits brother against brother. No one is likely to come out a winner, regardless of what happens in the case.
Who’s In Charge of Dad?
Three sisters were embroiled in a conflict over their father’s care. He was frail, needed help at home, was easily confused, and thought he was somewhere else most of the time. One of the sisters lived nearby and the other two sisters lived far away. They didn’t trust the sister nearest their father, and had reached the point of not speaking to one another. A professional handling their day-to-day finances understood the conflict among the siblings and she suggested mediation.
Surprisingly, all three sisters agreed to mediation. Four sessions took place over the phone, as all were distant.
The sisters gradually worked out their disputes. Each one had a point of view. Mistrust had dominated their communications for months and they had become hostile with one another. With discussion, each was able to ask questions, get information, and begin
to clear up misunderstandings. They made rules with the mediator’s help, and when they started to follow them, the trust they needed was re-established. They came to many agreements about how to best take care came to many agreements about how to best take care of their father, and finally reached a level of peace that had not been present in their dealings with each other for years. Their underlying mistrust, some of it going back to childhood, was not addressed, as mediation is not therapy, but they were able to work together to make the quality of their father’s life better.
Their father was well off financially so the family hired a nurse care manager and good home-care workers. The nearby sister was the liaison for everyone. She texted her siblings daily on their father’s situation. A few months later, their father died suddenly. But
now the daughters could look back on the time they cared for him during what turned out to be his last months, and knew that they had done their best for him. Mediation had enabled them to work together for their father’s benefit and for theirs as well.
Families at War
Family conflict is not at all uncommon when it comes to dealing with aging loved ones. Their old hurts, resentment, and emotional dysfunction emerge when they have to come together over the care or finances of an aging parent. Sometimes, they cope with not getting along by avoiding each other completely. This can go on for years. When a crisis happens, such as hospitalization of a parent, they are forced to not only see each other but make decisions together.
Being forced to make decisions as a group is even more difficult when the older adults in the family have not signed an advance healthcare directive (power of attorney for healthcare decisions), or a durable power of attorney for finances. However, even with these documents in place, as with James’ case, manipulation and influence over his vulnerable mother could undo what she had done when she was competent to sign
the documents.
In James’ case, he failed to communicate altogether, acted alone, and caused a fresh set of conflicts and resentments that could have been avoided. Conflicts over how to spend an aging parent’s assets are common. What needs to be examined closely is how to
avoid having the situation escalate to a legal fight. Unfortunately, litigation seldom works to benefit families in conflicts like this. Often, people engaged in these battles do irreparable harm to each other in the process. It’s a lose-lose ending.
In other situations, such as the three sisters, families choose to use an outside person to help them do what they have been unable to do by themselves. As you can tell from the outcomes of both of these true behavioral patterns, the choice families make affects
their relationships with each other in the long term. Mediation won’t fix every fight, but according to mediate.com, it’s statistically at least 80 percent effective in bringing people in dispute to agreements. Families that do not get along should be advised to
consider mediation as an option to make things better for everyone. An objective, neutral outsider can do a great deal to help family members reach agreements and resolve issues.’
The Mediation Process
Mediation is a voluntary process involving a trained, neutral mediator, and at least two parties in dispute. The parties meet, whether in person, by phone, or Skype. Mediation is a lot more than just talking things over. Mediator training is extensive, covering both the art and science of how the process works. A minimum of forty hours of training with both dispute resolution theory and mock mediation sessions is standard in the field. Mediators must have a basic understanding of how conflict works, how to de-escalate it, and how to ensure that all participants in mediation are heard. Mediators develop skills in drawing out the underlying emotions associated with conflict. They also use creative approaches to help the parties in conflict devise ways to resolve their disputes.
Many mediators have much more than forty hours of training. Some states certify mediators, but in most states there are no formal licensing requirements.
During mediation, the parties describe what they want to accomplish and the mediator takes on the task of making sure that every party at mediation has a chance to suggest possible solutions. The mediator leads the discussion and asks questions. The parties make their own decisions. The end result of a successful mediation is a written agreement or a set of agreements. Each person present has a voice in what happens. People do not have to like each other to reach agreement, but they often have to give up something to get something.
The mediator does not judge who is right or wrong or what the parties should decide. Rather, the mediator is a guide, referee, source of suggestions, and creative neutral party who finds common ground. The mediation agreement is a contract that all parties sign, and it is enforceable in court. Apart from the written mediation agreement, all aspects of the process are confidential. What happens in mediation stays in mediation.
Finding a Qualified Mediator
Mediators are usually independent, though some work in community-based organizations. Some are lawyers, though being a lawyer is not required. The best mediator for any dispute is a person who is experienced with the issues at hand. For example, a mediator
who works with older adults should have solid working knowledge of common areas of conflict concerning seniors and families, and know the community resources they can use to help solve their problems. Legal, healthcare, and emotional health issues may come up and it is important to find a mediator with expertise in one or more of these fields.
Some mediators work in a team approach, called co-mediation. Especially for larger groups, this can be very effective. Two mediators can see more problems from more angles and offer better suggestions than a single mediator can.
Mediate.com and eldecarermediators.com are independent resources for finding a mediator in your area. Other sources are dispute resolution services in local organizations, courts, or legal services groups dealing with older adults. Some courts have sponsored
programs for mediation, and some offer low-cost mediation for parties who represent themselves. However, one does not have to have a court case to find a mediator. The field of mediation for family disputes about aging individuals is emerging as a separate specialty, and there are relatively few mediators experienced in this area as compared with general mediation. It is referred to as “elder mediation” in the legal and mediation
communities.
Cost
Community-based organizations may offer free or low-cost mediation of this kind of dispute by using volunteer mediators. The drawback is that the volunteers may be new mediators, or may lack expertise or subject matter experience in the issues in dispute. The amount of time a mediator can work with a family may also be limited. Outside of community mediation services or low cost clinics, mediators generally work
independently on a fee for service basis.
Private mediators charge by the hour, often at rates similar to an attorney’s fees. The cost can be high for several sessions of mediation in a complex matter. However, it is certain to be much lower than the cost of any litigation. If you think of it as a preventive strategy to avoid paying ongoing attorney’s fees and court costs, mediation is a clear winner with excellent chances of success.
Conclusion
Unfortunately, family conflicts are common. People are living longer, creating more issues about running out of money, who is going to care for them, and loss of independence. Dysfunctional family members have to make decisions about these matters, which brings
out underlying long-standing problems. Fortunately, mediation is emerging as an excellent way to address these issues. It can help people reach agreements about many of the problems families face. Those who feel the pain of a family conflict or who witness it, should consider using mediation as a way to relieve the anguish and find a path to a more peaceful outcome. If you are a professional or an advisor to families at war, you are
in an excellent position to suggest using mediation, a tried and true method to reach agreements. •CSA
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