September 25, 2018

Elder Mediation May Avoid Litigation

Marshall McDonald, III

Mediation can be a good alternative to litigation. It's flexible, informal, less expense, and cheaper than a trial. Marshall McDonald covers the scope of mediation and why you should consider adding this to your legal practice.

A mother in her early 90s—who had no living will—was in a persistent vegetative state. Her three children were engaged in a furious battle about whether to terminate life support. One insisted she be kept alive no matter what, while the other two wanted to end extraordinary measures. The hospital refused to take an action without a unanimous decision. The lawyer for one of the children suggested mediation.

What is elder mediation?

Mediation may be an alternative to litigation.

In a trial, a judge makes the decisions. In mediation, the parties reach a decision or agreement. The mediator does not decide for the parties. The parties voluntarily come together to resolve their disputes in private with the help of the mediator. To help the parties arrive at a consensus, the mediator offers suggestions, gives information, and guides the discussion. The mediator tries to divert attention away from settling old scores between siblings and to focus on the senior's needs by assisting family members in identifying: what needs to be done, who is going to do what, and how the parties want to communicate moving forward.

The parties can explore options and devise solutions more effectively than in a trial setting. Mediation provides a process for families to resolve the conflict without further damage to the relationship.

What issues can be addressed in elder mediation?

Making decisions about an aging parent's living situation, care-giving, and finances are among the most common reasons that families seek mediation. Specific issues that can be mediated include:

  • Who should receive the power of attorney and have control over the parent's funds
  • Whether the keys to the car should be taken away from a senior parent
  • Whether the parent should move to assisted living or remain in the home and receive care from family or from a home health care agency
  • Whether the vacation home should be sold to pay for a parent's care or left for the children
  •  Whether a child who provides care for an ailing parent should be compensated, either by the parent while living or with a special bequest for a larger share of the parent's estate plan
  •  Whether life-prolonging procedures should be withdrawn
  • Whether a legal guardianship would be best for a parent who can no longer handle some tasks or whether less restrictive alternatives to a guardianship should be considered

How can mediation help?

Mediation promotes the speedy and informal resolution of disputes. It takes the pressure off family members to control the discussion. Less stressful than a trial...and less expensive.

Mediation is a more flexible process than litigation. Resolutions can be tailored to the needs and underlying concerns of the parties. Legal and non-legal issues can be addressed as well as remedies unavailable through an adjudicative process. Judges make decisions based on his or her interpretation of applicable laws. Courts are not charged with developing creative options that can leave all parties feeling heard and satisfied.

The conversation is solution-oriented. Mediation results in increased satisfaction and compliance with settlements when the parties have directly participated in crafting agreements.

Mediation focuses on the present. While past actions can be acknowledged, the focus is kept on the current situation and resources.

Mediation may assist in clarifying and narrowing issues in addition to fostering a climate of openness, cooperation, and collaboration.

Mediation helps participants say what they mean to say and hear what is being said to them.

Mediation may improve communication between parties, thereby preserving or enhancing relationships between parties. Courtroom proceedings, on the contrary, can destroy already fragile relationships.

What can you expect at mediation?

Mediation requires a meeting of some kind—usually face-to-face—to help the parties define what they want to work on and decide together what to do to unwind the conflict and move it toward resolution.

The focal point for elder mediators is to help parties resolve the conflict. The process is generally short-term. While some mediations may be completed in a day-long or weekend-long marathon session, other mediations occur over several sessions: within in a few weeks, a month, or longer. Mediation sessions can last until the parties reach agreement or no longer feel the process is helpful.

The length of the mediation is influenced by the agenda developed by the parties as well as the availability of the participants. Other factors influencing the duration of mediation:

  • The number of parties
  • The complexity of the issues
  • The number of outside resources (lawyers, care managers) needed
  • The quality of the relationships between the parties.

Mediation creates a platform to bring up difficult topics in a safe environment. The mediator can help to have the parties acknowledge changing needs and roles. Families brainstorm options that everyone can live with and develop a process for revisiting decisions as needs change.

The mediator's job is to defuse the situation and keep the group focused on their common goal: to come up with the best possible outcome. In some situations, an elder law attorney, financial planner, caregiver, or geriatric care manager also attends to lend his or her expertise.

When is the best time to start mediation?

Early intervention is best, especially at the beginning of the decision-making process when people are struggling with options and discovering feelings about their parents, siblings, or other family.  The process of mediation allows families to develop creative solutions to challenges in a way that the courts cannot.

When is mediation not appropriate?

Mediation is not an appropriate means to resolve every conflict where the parties voluntarily participate in the process and are motivated to reach a settlement.  Elder mediation helps families to successfully grapple with issues of caregiving for aging parents, estate disputes, safety and health concerns, and decisions regarding the family and the best place for parents to live.

A core value of elder mediation is the protection of the rights and interests of seniors.  Elder mediators act as neutrals but look to families to consider ways to maximize their senior's independence whenever possible.

Mediation is not appropriate and will not be allowed to continue if the mediator finds that there is coercion, abuse, or neglect.  In cases where the elder has cognitive impairment or other limitations in his or her ability to fully understand and participate in decision-making, the mediator will insist that an appropriate advocate for the elder (such as an attorney, a social worker, or geriatric care manager) be present for all conversations and participate in all decisions which would impact the senior.

Where to find an elder mediator?

There is no national credentialing or formal licensing for elder mediators. States have different requirements. Choose a mediator familiar with elder issues. For referrals, try these sources:

Marshall McDonald, III

Marshall McDonald, III is an attorney in Tequesta, Florida who is certified by The Florida Bar in two areas: Elder Law and Wills, Trusts and Estates. He is also a Certified Public Accountant and Certified Financial Planner.