What is Mediation?
Mediation is a voluntary method of dispute resolution that allows parties to craft their own solution to a dispute. A neutral third party (the mediator) assists the parties in identifying the issues, generating and evaluating options, and creating an agreeable solution. Mediators never impose decisions on the parties but encourage the parties to find common ground and resolve the dispute on their own terms.
Mediation can be a safe and confidential process that addresses all aspects of the dispute — whether the issues are financial, legal, or emotional.
Unlike a judge or arbitrator who listens to both sides and makes a decision for the parties, a mediator assists the parties to develop their own solution. Although mediators sometimes provide ideas, suggestions, or even formal proposals for settlement, the mediator is primarily a “process person,” helping the parties define the agenda, identify and reframe the issues, communicate more effectively, find areas of common ground and negotiate fairly and respectfully. A successful mediation effort has an outcome that is accepted and owned by the parties themselves.
What is Elder Mediation?
Elder Mediation involves a dispute where an older adult is a party or the subject of the dispute.
Getting into a dispute with your family can be an incredibly stressful and frustrating experience. This is especially true when the disagreement concerns the care or safety of an elder family member. Long-standing conflicts, sometimes going back to childhood, can cloud decision-making and increase stress.
Some of the issues most commonly addressed in Elder Mediation include:
- Where will the elder will live (e.g., with family, in a nursing home, assisted living community, adult family home, etc.)?
- How will the elder’s financial needs be met?
- How can the family balance the elder’s autonomy with the need for safety?
- Who will serve as the elder’s fiduciary (i.e., Guardian, Agent under a Durable Power of Attorney, Trustee, or Health Care Agent)?
- Should a family caregiver be compensated?
- What tasks will each family member be responsible for?
- How will disputes over end-of-life decisions be resolved?
- How will care decisions and finances be handled in the case of blended families?
- Is action is needed to protect a vulnerable adult?
- How can the family improve communication and transparency?
- How will past loans or gifts to family members be addressed?
Elder Mediation can occur before or after legal proceedings have been started. A petition for guardianship, a petition for an order of protection of a vulnerable adult, or a contested probate may all be suitable matters for Elder Mediation.
Frequently Asked Questions About Elder Mediation
A facilitated family meeting uses a process similar to mediation, but the goals may be less clear cut. There may not be a definable “dispute” which requires resolution. A facilitated meeting can help families talk about issues before they become intractable problems. The facilitator can realign expectations and help educate the family members about the realities of elder care and finances, with the goal of getting everyone onto the same page. Typical goals for a facilitated family meeting might be to improve communication, rebuild trust, and implement a workable care plan.
If you think that Elder Mediation might be right for your situation, call the mediator and explain the nature of the dispute. If requested, the mediator can reach out to the other parties to find out if they are interested in participating in mediation or a facilitated family meeting.
You should select a mediator who has the right skills, experience, demeanor and approach to meet your situation. Talk to potential mediators to learn about their experience and approach to mediation. If the mediation involves an elder with dementia, the mediator should have experience working with persons with cognitive impairment.
All information provided in a mediation is privileged and confidential, and except for a few legally required exceptions, cannot be disclosed outside of the mediation. The mediator cannot be compelled to divulge information or to testify about matters discussed in the mediation in any adversary proceeding or judicial forum.
Most Elder Mediation matters can be resolved in one to two sessions, and can be scheduled within a relatively short time frame. By contrast, elder disputes that are resolved through the courts can take months or years to resolve.
The process for Elder Mediation is very flexible. The mediator may meet or talk with the parties separately, or a joint meeting may be best. The mediator will take all steps necessary to accommodate the parties’ needs related to age, impairment, or stamina.
During mediation, the mediator works to facilitate fair and respectful communication. To that end, the mediator will ask questions and try to help the parties identify issues and understand the others’ concerns and points of view. Mediators do not take sides, nor will they force anyone into accepting an outcome they do not want. The parties will set ground rules, and the mediator will make sure that the discussion proceeds in a fair and safe manner. Once the parties reach a consensus, the agreement will be put in writing and everyone will receive a copy.
In Elder Mediation, it is extremely important that the voice of the elder be honored. An elder with dementia may or may not be able to participate fully. Talk to the mediator about ways that the elder can participate in the process.
Mediation is not a substitute for psychotherapy or counseling. Mediation does dwell on the past, or try to resolve old hurts, but focuses on the present and the future. Mediation is results oriented. Mediation focuses on identifying issues and reaching resolution within a concrete time frame.
It is not necessary to be represented by an attorney to participate in mediation or a facilitated family meeting. If you would like a non-party, such as a spouse or friend, to attend the mediation to lend support, ask the mediator if that would be acceptable.
The mediator will charge a professional fee for time spent reviewing materials, speaking with the parties, and for joint or individual sessions. The amount of time needed will vary by the complexity of the issues and the number of parties involved. Please contact us if you would like an estimate of fees for your dispute. As a general rule, resolving a dispute through mediation is far less costly than litigation.