Mediation offers a sensitive, caring process for the constructive and proactive resolution of very private and painful issues related to the care of parents in their declining years.

While conflict is a signal that there is something wrong in a relationship that requires our attention, it presents an opportunity to improve and enhance a relationship. If you reflect upon any long-term, valued relationship, there was probably a point in time when a conflict or disagreement erupted, but the two of you decided that the relationship was more important than who was right or wrong. As a result, you together fashioned a resolution and were reconciled, and the relationship deepened.

Balancing the independence and dignity of an elderly parent with the concerns of adult children for their parents' health and safety can be a challenge for cooperative and highly functioning families.

Red flags and hotspots

Serious dilemmas begin to surface when the family home begins to look somewhat unkempt and, in places, downright filthy; when adult children discuss the results of their parents' doctors appointments, and the parents are not quite sure why they are supposed to be taking a certain prescription, or how many pills they should take each day; or you ride as a passenger in an elderly parent's car and you notice that they are only making right-hand turns.

Add to the mix several adult children who have never fully resolved sibling rivalries from childhood, or an adult child who has moved back into the family home because of divorce and/or unemployment, who is suddenly managing bank accounts and investments for Mom and Dad, and things can start to get ugly.

Further complications arise in situations where out-of-town siblings begin to offer unsolicited critiques of an in-town sibling's care of their elderly parents, or when Mom or Dad had additional children in a second or third marriage.

There are at least three situations in an elderly parent's life that can present the potential for escalating conflict among family members: 1) attempting to provide the care and services necessary to enable Mom and Dad to remain in the community and in the family home; 2) when end-of-life and health-care decisions must be made; and 3) probate of the elderly parent's estate, with or without a will, and the "distribution" of his or her property among the surviving children, who may or may not have the same mother and father.

Those adult children likely have job and family responsibilities of their own, and may have to try to balance the needs of their elderly parents - perhaps doing some shopping or meal preparation, taking them to medical and other appointments - without getting fired.

On occasion, elderly parents have actually prepared a will and health-care proxy, perhaps a trust and a power of attorney. Mostly, however, people have merely put these documents on their "to do" list. The preparation of these documents does not insure smooth sailing for the elderly parent and interested family members. Deborah Gentry has reported in "Resolving Middle-Age Sibling Conflict Regarding Parent Care" that "nearly 40 percent of adult children providing parent care reported serious conflict with a sibling" (Conflict Resolution Quarterly, Vol. 19:1, Fall 2001, p. 35).

Enter the lawyers

The most common response in the face of intra-family conflict is for one or more of the adult children to retain an attorney to initiate a guardianship proceeding under Article 81 of the New York State Mental Hygiene Law. The main issue of this legal proceeding is to determine whether the alleged incapacitated person (AIP), the elderly parent, is incapacitated in one or both of two areas: 1) with regard to the care of their person, and/or 2) with regard to the care of their property. I do not know about you, but I would want to make darn sure that my mother or father was absolutely and permanently incapacitated before I called them "incapacitated" and had guardianship papers served on them.

When the AIP is served, the court appoints a court evaluator, an attorney, who must be paid. The court evaluator interviews the AIP and others and, as a result of his or her investigation, prepares a report for the court. In addition, the court appoints an attorney to represent the AIP, to protect their rights as guaranteed under the law; this attorney must be paid. The attorney who prepares the guardianship petition and related documents must also be paid. And, if the adult children do not agree as to whether this legal proceeding should be occurring, or one believes he or she should instead be appointed as guardian, then each of the conflicting adult children may retain an attorney to represent their interests, and of course these attorneys must be paid.

The litigation process presents a win-loss proposition through trial, or the fashioning of some sort of compromise. The vast majority of court cases are settled by the parties, and only a small proportion of cases actually go to trial. The legal compromise process represents a search for an acceptable level of dissatisfaction by the parties. This is very much like a person putting his or her right foot in a bucket of boiling water and their left foot in a bucket of ice water and proclaiming, "On average, it feels all right."

There are more expenditures than time and money in a guardianship proceeding. Even if Mom or Dad is not entirely certain why their adult children are mad at each other and fighting, they are emotionally impacted by this turmoil. This is one of my admitted biases, but I believe our elders should enjoy the remaining time they have on this earth, be spared unnecessary strife and turmoil, be surrounded by loving and caring offspring, and pass with a settled peace of mind. OK, I am an admitted romantic and optimist.

How mediation is different

Mediation offers a viable alternative to the process of litigation and court proceedings. While in litigation, each of the above-mentioned attorneys is ethically bound to zealously represent his or her client against all others, during mediation, a trained, professional neutral facilitates discussions through a constructive and sensitive problem-solving process. Instead of focusing steadfastly upon positions, energetically defending these positions and voraciously attacking others, the mediator gently and compassionately elicits and explores the interests, needs and concerns of all interested family members.

The setting for mediation can be a private office or the home of the elderly parent, rather than an open courtroom. Do you really want to air the family's laundry in court? Do you really want to have Mom or Dad listen to the proof offered by your attorney, and your testimony and that of witnesses and experts, to show that Mom or Dad is incapacitated to a clear and convincing degree? Do you think this family will ever enjoy another Thanksgiving dinner together again? I know of very few combatants who, at the conclusion of a litigated matter, walk out of court and decide to let bygones be bygones and enjoy a beer together.

Often, through mediation, a healing takes place, and reconciliation is possible. The mediator assists people to express their needs, interests and concerns in a way that can be heard and received by others. In this process, people are encouraged to listen, really listen, and gain a greater appreciation and understanding of the other, even if they do not see eye-to-eye. People amaze themselves with the creative solutions they come up with. Forgiveness becomes possible and melts away resentments that had been nurtured and cared for like a precious creature.

Mediation is appropriate whenever there are relationships worth preserving. This process may be initiated prior to initiating a court proceeding, or even after litigation has commenced. The court will generally be more than happy to allow time for family members to engage in discussions that could result in a mutual resolution.

Moreover, it is a voluntary process. No one involved in a mediation agrees to anything unless he or she is truly in agreement. Each person may retain an attorney to provide legal advice and counsel and to review any documents prior to execution.

"Because the senior is involved in the process (rather than their adult children making decisions for them)," write Rodney Elden and Irene Ziebarth, "there is an 85-90 percent success rate with compliance" (American Bar Association, March 1999).

For many years I have been telling other attorneys about the benefits of using mediation for issues related to elder care, estate planning, end-of-life care and probate. I consider it an honor and a privilege to be invited into people's very private and painful lives, and I get to witness the amazing transformations and resolutions that people who are in conflict can create under very adverse circumstances.

Mediator and lawyer Timothy Mordaunt is a Grand Island solo practitioner. He can be reached at attorney@timmordaunt.com.

 

 

For further reading and research

"According to a recent report by the National Alliance for Caregiving and AARP, nearly one in four families in the U.S. are involved in caring for a friend or relative age 50 or older. Of these 22.4 million families, 41 percent are also caring for children under 18; almost one-third of the families provide care to two or more relatives and friends, and 64 percent of the caregivers are employed and trying to balance caregiving and work." - Karen Rice, "Family Caregiving" (Senior Living Guide, Spring 2003).

"Truce! Using Elder Mediation to Resolve Conflict among Families, Seniors, and Organizations," Patricia Bertschler and Laurette Cocklin, 2004

The Center for Social Gerontology Inc., www.tcsg.org, (734) 665-1126

www.mediate.com

"Never Too Old To Be Well: Improving the Physical, Emotional and Spiritual Health of Elders, their Families and their Aides," by Tom DeLoughery, 2007; www.nevertooold.net

-- Recommended by Timothy Mordaunt