Problem:     Communication / Negotiation Issues

• Example:    Siblings’ long-standing mistrust of each other prevents them from putting differences aside and focusing on the needs of the aging parent.
• Solution:    Address the underlying issues and explain the need to put anger / mistrust aside to effectively assist the parent. Emphasize common goals and positives in the relationship. Consider involving third-party neutral (e.g., psychologist or family friend). Attempt to involve the aging parent or to give expression to the parent’s concerns through a surrogate such as a geriatric care manager (GCM). If necessary, consider structuring mediation so that parties are encouraged to speak only through the mediator, as opposed to speaking directly to each other. Explain the alternative to mediation (litigation) and its downsides. Explore making incremental agreements, so that parties can see the other party is complying and learn to trust the other party.

Problem:    Factual or Legal Misinformation; Unrealistic Expectations

• Example:    Parties disagree about whether the aging parent can remain in the home, but does not understand the extent of resources necessary to pay for in-home care; whether remaining in the home is feasible given the extent of the disabilities; what potential public services are available, or their ability to qualify for those services.
• Solution:    Educate the parties regarding these issues. Involve a GCM to clarify the care issues and obtainable community resources. Involve an elder law attorney to explore the availability of public benefits and eligibility requirements. Involve a financial expert to increase income and protect assets. “Finances drive the care plan.”

Problem:    Emotional Reaction to the Dispute

• Example:    One sibling sees him/herself as the long-time caregiver who has made significant sacrifices to remain at parents’ home and care for the parents as they age; other sibling sees “caregiver” as a freeloader.
• Solution:    Address the underlying issues and explain the need to put anger aside to effectively assist the parent. Emphasize common goals and positives in the relationship. Consider involving third-party neutral.

Problem:    Inappropriate Representatives / Wrong People at the Table

• Example:    Issue is whether long-term care facility placement is necessary/appropriate, but a geriatric care manager is not involved.
• Solution:    Review the issues and make informed decision regarding mediation participants from the initial meeting. Involve a GCM and /or elder law attorney.

Problem:    Lack of authority to make decisions

• Example:    All siblings agree on the best course of action for the parent, but the parent is incapacitated and no one has been named as the parent’s guardian or as parent’s agent under a power of attorney.
• Solution:    Examine and address authority issues at commencement of mediation. Discuss the need for a surrogate decision-maker and the procedures available under state law for appointing a fiduciary.

Problem:    Attorney Personalities

• Example:    Attorney Needs: To impress his/her client; To impress the opposing client; To impress the opposing attorney; To learn information about the case; To obtain financial gain; To preserve and save face; To avoid being “shown up.”
• Solution:    None Readily Available

From Mediation: The Art of Facilitating Settlement, Straus Institute for Dispute Resolution Pepperdine University School of Law (1993-2009); Craver, C., Effective Legal Negotiation and Settlement (5^th ed. 2005); Moore, C., The Mediation Process, (3d ed. 2003).

P.S. I found an article on elder mediation in the AARP Bullletin. To read it, click here.