Family feud? High-conflict probate and trust dispute? In-court proceedings and hearings tend to escalate these types of conflicts rather than resolve them. For attorneys and neutrals seeking to resolve family conflicts involving eldercare issues, a family-centered mediation approach can be an effective alternative to litigation.
This article will cover the process of family-centered eldercare mediation. The author will explain how a facilitative, team-based approach can resolve conflict in family and probate disputes involving elder decision-making, and result in more effective shared decision-making between family members and stakeholders.
Eldercare Mediation: What Is It?
Before a discussion of the concept of “family-centered mediation,” it is important to understand the parameters of elder mediation. This distinct branch of mediation fits under the larger umbrella of family mediation, and can include estate planning issues; probate; and family caregiving. It is an alternative dispute resolution process to help families navigate eldercare decision-making. A third-party neutral mediator fulfills a facilitative role in helping families to define goals, address issues of contention, and generate ideas for resolution. The facilitative nature of this process (as opposed to evaluative or directive) promotes collaborative decision-making amongst families, where the elder mediator guides families in using strategies that can help them to make better decisions on their own. This eliminates the need for the families to return to the court to make decisions for them.
Within this model of mediation, all stakeholders—including family members, caregivers, and attorneys—meet together in scheduled sessions where issues are clearly defined. The elder mediator works with all participants to identify issues, encourage group discussion about those issues, determine whether additional information is needed, and define next steps for obtaining needed information and reaching resolution of identified issues. Elder mediation is customized to the specific situation and participants, which allows for goals to be specifically defined and addressed. This allows the elder mediator to open discussion that is focused on those goals.
During the process, the facilitative elder mediator does not resolve conflict for the participants. Rather, the elder mediator helps participants identify conflict and implement strategies to manage conflict on their own. The elder mediation process gives the parties the opportunity to deal with emotional issues in a way that traditional litigation cannot.
Elder mediation embraces the facilitative model to manage large group discussions amongst family members and other stakeholders to address issues in eldercare. The elder mediator instills decision- making power in the parties and offers them the conflict resolution skills they can use to develop their own solutions to problems.
Family-Centered Care: A Conflict Resolution Model
As the elder mediation model lends itself to a facilitative approach, it encourages communication, collaboration, and a sense of caring from the mediator to all participants. This approach is what the author embraces in her practice, and what she refers to as “family-centered care mediation.”
Family-centered care is an approach with origins in healthcare field, specifically in the care of senior patients. The Institute for Patient-and-Family-Centered Care describes the approach as: “mutually beneficial partnerships among health care professionals, patients, and families” with an emphasis on collaboration to help patients and families participate in care and decision-making. The care team exchanges information and communicates with the patient and family regarding healthcare decisions. This approach as applied in the critical care setting can decrease the strain of caregiving in families during a crisis.
As observed in this definition, a family-centered approach involves: communication, inclusivity of family members and stakeholders, and an effort to collaborate in decision-making to the greatest extent possible.
These core concepts are used in disciplines other than healthcare; in fact, collaborative attorneys and mediators embrace these concepts in their practices in order to help their clients reach resolution outside of court. Thus, the Family-Centered Care (“FCC”) model in healthcare may be considered interdisciplinary. This approach is used in family law, for example, in collaborative divorce involving children. The collaborative team (attorneys, mediators, financial advisors) focuses on solutions to support an amicable divorce process which supports the physical and emotional needs of the children.
Here, as well as in similar family case types, professionals promote communication between all parties, and facilitate resolution-focused discussions to ensure the best possible outcome for the family.
To adopt this model more broadly in legal practice and mediation, practitioners can follow the principles of communication, collaboration, and care. Each of these are described below.
C: Communication
Communication is essential for transparency, problem-solving, and de-escalation of conflict. A lack of communication is a high indicator of conflict. Litigators commonly see communication breakdowns between the parties, which leads to ongoing court battles. When these cases come before a mediator, the mediator’s task is often to help the parties close the communication gap to arrive at a semblance of agreement. Unsurprisingly, the stress and conflict caused by miscommunication is widely spread across the healthcare field as well.
Nursing magazine continues to cite this as a barrier to effective delivery of care to their patients: “lack of communication regarding significant changes in [patient/case/family] status creates anxiety and frustration for family members.”
It is equally applicable here, as attorneys and mediators often see (in the cases brought to litigation) that communication breakdowns engender and perpetuate legal battles in court. In a probate conservatorship where family members fail to discuss the issues amongst themselves (including whether or not a conservatorship is necessary to care for an ailing, aging parent), lack of communication leads to misunderstanding, mistrust, and reignites patterns of conflict.
Thus, consistent communication is essential to initiating and maintaining family centered-care—in the healthcare field as well as in family dispute resolution.
One strategy to facilitate communication is to use technology. Where elders are unable to use it, or have challenges, offer support through video technology to allow for communication. Also offer alternatives to accommodate all of the parties involved. Work with other professionals involved in the case (i.e., social worker, care manager) to brainstorm effective ways to maintain contact and establish communication schedules and guidelines.
C: Collaboration
In any multi-party scenario, collaboration is imperative to stay on track, establish consistency, and move forward in a productive, resolution-focused direction.
In an elder care case, collaboration between fighting family members is key in the effort to achieve mutual agreement. However, it must initiate from collaboration between the professionals retained to resolve the dispute! Professionals involved in an elder mediation are models for the parties. We are educators as much as we are dispute resolvers. If we want the family members to collaborate and reach agreement, we must show them what that looks/sounds/feels like by embracing a collaborative approach.
Establish this precedent by working with all professionals involved. In healthcare, interprofessional teams may include the nurse, physician, pharmacist, physical therapist, social worker, and others. In family, probate, and elder law, the collaborative team may consist of attorneys, mediators, social workers, care manager, financial advisor and other persons who can support the decision-making process.
Just as interprofessional teams are vital to the effective delivery of care, the collaborative team in the context of law and mediation is vital in creating comprehensive and integrated mediation agreements, family care plans, parenting plans, elder care plans, and/or stipulated agreements to address chronic conflicts in families.
Teamwork amongst the professionals involved in an eldercare case is important to inspire collaboration and effective dispute resolution amongst the disputants.
C: Care
Lawyers and mediators do not often talk about care in reference to their practice. They do talk about active listening and empathy, which are both concepts involved in the act of caring.
Caring in the context of whole family dispute resolution means involving the family in the problem solving and resolution of the dispute to the greatest extent possible. While in elder mediation the “elder” is necessarily the central person in the conflict (just as the child may be in a child-focused family mediation), the mediator does not focus their efforts solely on the elder. Rather, effective dispute resolution happens when the mediator demonstrates care for the entire family. This creates cohesiveness, safety, and control. This also helps the mediator maintain objective neutrality, as the mediator will exercise care across the board during the mediation process.
What does care look like? It includes active listening, empathy, reframing, and related strategies to tap into the emotions and psychological experience of the parties. Note that these all refer to ways in which lawyers and neutrals use language (verbal and nonverbal) to facilitate resolution of a dispute.
To achieve a sense of caring in dispute resolution, use empowering language and a hopeful perspective. This allows the lawyer or mediator to acknowledge challenges but also the successful steps the family has taken to address them, which supports overall teamwork.
Recognize progress and document progress. This shows investment in the process and models positive behavior. Continually encourage a future-focused outlook by helping parties reframe their internal stories. Acknowledge the conflict, but close the dialogue with a positive statement. For example, use these sentence frames to help the parties shift their language and in turn, shift their focus away from the conflict:
- What keeps me hopeful is…
- What I want my family members to know is…
- What I am proud of is…
Modelling positive language is an excellent way to demonstrate care and help the parties move forward in their lives and past the conflict.
Conclusion
While the concepts addressed in the family-centered care mediation model are not new, the model itself is a new way to approach family conflict in the context of probate and eldercare. The strategies can be implemented in both law and mediation practice to help parties reach resolution outside of court.
To learn more about this dispute resolution model, or to inquire about training, contact the author at [email protected].