The Elder Mediation Process

As opposed to litigation, mediation is a voluntary process in which a neutral third party helps guide the parties in conflict toward an understanding of their dispute; control of family issues and emotions; compromise and resolution of that conflict; and, perhaps, toward a new way of relating to family members.

While not typical in a traditional civil mediation, elder mediation often involves non-legal professionals such as a financial consultant, family counselor, or geriatric care manager.

By employing an elder mediation model in which the mediator (traditionally an attorney) acts as the “neutral” party, and a geriatric care manager serves as advocate for the best interests of the elder, rather than as the mediator or as a consultant or “expert” for one of the parties, a measure of autonomy is guaranteed for the elder.

The elder mediation process is designed to be flexible. Thus, although not every mediation will follow this outline, the mediation typically involves the following stages:

  1. Pre-mediation – (a) Determine if the case is appropriate for mediation; and (b) identify those who should attend the mediation (not just family members – may be trusted advisors, friends, financial planners, etc.).
  2. Forum with all parties – The mediator strives to ensure that the voices of all interested parties, particularly that of the elder/disabled person, are heard and respected.
  3. Capacity evaluation and needs assessment by geriatric care manager.
  4. Identification and analysis of the issues – Elder disputes often involve issues, emotions, and conflicts that may have been underlying family relationships for many years.  The mediator guides the parties toward confronting, overcoming and resolving these disputes in a more creative and comprehensive way.
  5. Mediation sessions – Mediation sessions may occur with all parties together, or may “caucus” into smaller groups.  The parties “brainstorm” and generate a range of options for solving the problem.  If the mediator believes that the parties would benefit from the involvement of other professionals (such as a financial consultant or family counselor), these outside professionals may be included in the mediation session(s).
  6. Memorializing the agreement – Where warranted, the mediator will draft a Memorandum of Understanding which will specifically identify the issue(s) addressed and the parties’ resolution of those issues.
  7. Post-mediation sessions – The elder mediation process often leads participants to strengthened family relationships in which future conflicts can be resolved easily.

After The Mediation

Of course, the primary focus of elder mediation is the resolution of a particular family conflict. However, a more valuable long-term benefit often evolves when family members engage in the mediation process, which provides the parties with the necessary tools to forge new relationships with family members and helps the participants deal more effectively with future transitions and conflict involving the elderly family member.  As a result, elder mediation is a valuable resource that should be considered for elder clients in family conflict.

Skill Set Of The Effective Elder Mediator

Not surprisingly, perhaps the most important of the elder mediator’s requisite skills is listening and communication: the mediator must recognize both verbal and nonverbal messages of the parties, and must consider not only the substantive/content aspect of the message, but also the affective/feeling aspect, keeping in mind that the mediation is often “about” much more than the discrete issue that has brought the parties to the table.

The mediator must exhibit empathy and be non-judgmental. An understanding of the law, including the various options that may be available in the elder law context, is critical in ushering the parties toward a successful resolution of their issues.

Finally, and above all, the mediator must be patient in order to allow the process to work.