1 Elder/Adult Family Mediation: A New and Evolving Field Pre Presented at the DRC 2008 Bryan, Texas Barbara Sunderland Manousso, Ph.D. (ABD), M.P.H

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Elder/Adult Family Mediation: A New and Evolving Field

Pre

Presented at the DRC 2008Bryan, Texas

Barbara Sunderland Manousso, Ph.D. (ABD), M.P.H.

Used with permission given on 7/29/08.

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What is this field of practice?

Elder Mediation

Adult Family Mediation

3Barbara Sunderland Manousso, Manousso Mediation

Family Mediation

Advantages of elder mediation

Because the senior is involved

in the process (rather than their

adult children making decisions

for them), there is an

85-90% success rate with

compliance to the decisions.

(Source: American Bar Association, Elden & Ziebarth, March, 1999).

What Elder Mediation is Not

A seemingly legal process, use of authority, for the family to make decisions for the elder and keep them “safe” against their wishes.

The Role of Mediator

The mediator is not a judge, does not decide who is right or wrong, and does not force the parties to reach agreement or to accept particular terms to an agreement. Instead, the mediator listens and gives voice to all the parties and empowers them to talk and to agree upon a workable, mutually acceptable solution.

Elder Mediation vs. Court

Mediation Court

Decision The parties Judge

Control Mediator/parties Judge

Process Informal, private Formal, public

Cost Low Cost Depends on Court and Attorney Fees

Time Less than 10 days to schedule

Several weeks to months to get court date.

Confidentiality Confidential & private

Records become public

Approach

Result

Non-adversarialWin/Win

Adversarial

Win/Lose

Advantages of elder mediation

Gives seniors input into making decisions that affect them and the family.

The Biggest Advantage

Because the senior is involved in the process (rather than their adult children making decisions for them), there is an85-90% success rate with compliance to the decisions.

(Source: American Bar Association, Elden & Ziebarth, March, 1999).

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Characteristics of Elder Mediation

Multiple Issues Usually multi-party cases Mediator’s concern for wellbeing of elder

Focus on self-determination and informed consent

Preserving the elder’s autonomy Relationships continue into the future Relationships affect others in the family (nieces,

nephews, grandchildren, spouses, etc.)

Barbara Sunderland Manousso, Manousso Mediation

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Characteristics of Elder Mediation continued

Mediation is often not an “end point” – ongoing decisions will follow:

• If elder stays at home: Home services, care giving, bill paying, driving/transportation

• If elder moves to a residential community or facility: How to pay?Choosing a community or facilityInteracting with the facility administration

• Eventually, end-of-life, burial and funeral decisions


Face of Senior: A rolling stone?!

Conflict Theory

Lewis Coser, a student of Georg Simmel, opines that conflict may be observed through human relationships.

Conflict serves to establish and maintain the identity and boundary lines of societies and groups;

More Conflict Theory….

Conflict is not always dysfunctional for the relationship within which it occurs; often conflict is necessary to maintain such a relationship;

A conflict is more passionate and more radical when it arises out of close relationships.

And More…..

“Conflict, rather than being disruptive and dissociating, may be a means of balancing and hence maintaining a society as a going concern.”

Schellenberg,J. (1996) Conflict Resolution: Theory, Research, and Practice.

Critical Theorists

Critical theorists, starting with Jurgen Habermas, Max

Horkheimer, Herbert Marcuse, and Theodor Adorno,

argue that systems of oppression need

to be viewed and that freedom comes from

understanding the historical perspective and having

honest communication.

Systems Theory

Embraces the unity of interacting parts with inputs from the surrounding environment.

The emphasis is how things work together, not how they fall apart.

Schellenberg,J. (1996) Conflict Resolution: Theory, Research, and Practice.

Furthermore Theory

Systems theory leads to Social Exchange Theory, defined by George Homans, is the attempt to apply the framework of market analysis to such phenomena as formal interaction and the emergence of group patterns.

It is the exchange of goods, such as social benefits people provide for each other.Schellenberg,J. (1996) Conflict Resolution: Theory, Research, and Practice.

Abe says…

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser --- in fees, expenses, and waste of time.”

Abraham Lincoln

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Intake – A New Landscape

“Family Champion” Pre-mediation conference call and/or Pre-mediation private sessions in person or

by phone Best to meet with senior in person.

Explain the process and set appropriate expectations

Decide who needs to be at the table


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Intake continued

Determine needed accommodations for any party;

Understand complexities and create a list of issues or “conflict assessment” without attribution to be approved by all parties;

Determine if mediation is appropriate.


Intake Concerns

Screen for Abuse or Neglect Many of us are not domestic violence professionals; Be transparent that you are trying to determine if this

process is right for them and the other parties; Be alert to these issues throughout the process.

Note: Mediators differ on whether and how to allow mediation to move forward in the presence of suspected abuse or neglect or safety issues.


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Intake Finesse

Possibly speak with lawyers, geriatric care managers (GCMs), social workers, CPAs, etc. in advance if appropriate.

What if some members of the family won’t join in?

Agree on who will be paying. Take time with parties!


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Elder Mediation A Hybrid of DR Processes

Don’t predetermine the DR process “Let the Forum Fit the Fuss”- Frank Sanders


Family Dynamics in Elder Mediation

The Hidden Issues

Sibling rivalry concerning

Parent attention and place in the family;

Achievements as adults and children;

Resources and gifts

Loyalty dynamic

To the family of origin

To the elder

To specific siblings

To the family of procreation

Hidden agendas

Money

Security

Agreements and contracts

Future plans and relationships

Family Secrets

Around the elder or siblings;Child or elder abuse (reporting may

be required);Past or current traumas or secrets;Substance abuse;Betrayals;Difficulty resolving the trauma.

Perceptions that make the difference.

To all parties.

What happens in mediation?In a typical problem solving mediation

The mediator explains the process and ground rules.

One by one, each party explains his/her point of view in an uninterrupted manner.

The mediator works with the parties to clarify the issues to be discussed.

The mediator encourages the parties to propose options and prioritize solutions on how they can resolve the matter to all their satisfaction.

Transformative Mediation

The parties decide their own ground rules.

The mediator occasionally checks in and clarifies the dialogue and assists in empowering all parties to voice concerns and be heard.

The mediator is comfortable with silence and follows the pace of the parties.

If the parties reach agreement on all issues brought to mediation, the parties put the terms of the agreement in writing.

A copy of the mediated agreement is then given to all the parties and, in some cases; the court will incorporate the terms of the agreement into an order.

Or the family can use it as a blue print for communication out side the court.

The parties are responsible to follow through with the agreement.

Families are Unique

Each family has a unique, often tacit, understanding of how decisions are made and conflicts are resolved.

This is their “dispute system.”

Dispute Systems Design (DSD)

See: Harvard Negotiation Law Review's (HNLR) Symposium March 7 – 8, 2008


Consensus Building/ FacilitationElder Mediation

Convening / Conflict Assessment / Agenda Building Everyone heard - no one dominates Interests communicated Options generated and considered Build consensus: “Can everyone live with this?” If not, “What can you suggest that will be acceptable to the

group?”

Larry Susskind/Consensus Building Institute, Cambridge, MA Susskind, L. E. & Cruikshank, J. L. (2006). Breaking Robert’s Rules.


Barbara Sunderland Manousso, Manousso Mediation 36

Elder Mediation A Hybrid of DR Processes

Conflict Coaching When essential parties are unwilling to come to the table When mediation is at its end, but some parties still want

assistanceNote: Don’t use same individual as mediator and coach

Facilitated conversations A mix of interest and rights based negotiations Arbitration Case evaluation.


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Arrows in Your Quiver

Co-mediation Expert Advisors and Community Resources Creating an agenda and using flipcharts Writing “meeting summaries” Forming Sub-Committees Use of Teleconferencing, email, online dispute

resolution (ODR) Meeting wherever it works best and for how ever long

is appropriate Taking breaks Breaking bread / Family Retreats

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Who Pays for Mediation?

This may need to be mediated Some possibilities:

“Family Champion” may coordinate payment for first session and beyond

Costs are divided among family members Parties consider differing financial situations Funds are taken from the estate or trust The parent(s) may choose to pay

Be mindful of impact on neutrality of mediator


Who might be at the mediation or facilitation?


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Possible Table Participants The senior(s)/spouse Adult siblings Children’s spouses Grandchildren Concerned friends Caregivers Clergy Pets Advocates: friend, geriatric care manager (GCM),

lawyer, CPA/financial planner


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Trusted Advisors and Resources

Elder Attorneys / Estate & Trust Attorneys Geriatric Care Managers Financial Planners Medical Doctors Long Term Care Facility Administrators or staff Senior Service Providers Families and their trusted advisors Trust Officers Neighbors and Trusted Friends


Topics for Mediation

Health/medical care decisions. Who should provide the care? What care is needed? Who should make medical decisions?

Financial decisions. How should money be spent? How should investments are handled? Concerns over “unwise spending”, etc.

Living arrangements. Where? With whom? Who decides? How much independence/supervision?

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We need to talk


Communication Issues

What information is needed or missing? How to share information with those who need it?

Family relationship issues. (New or long-standing.) How should the family deal with sibling rivalries, new spouse or companion, death of spouse/caregiver, other changes in relationships?


Conversation Points

Respite care and support for caregivers.

Personal, household care and maintenance.

Identify caregivers/service provider. What type of care/service is needed?

Safety/risk-taking/autonomy. What safety issues are identified? Is the level of risk understood and acceptable? Should autonomy be limited?


Needs of other family members/caregivers.

Dependent children.

Grandparents caring for grandchildren.

Career demands.

Reimbursement for services.

Visitation issues.


A Few Thoughts for Mediation

Decision making. Who should have authority to make decisions? What input (if any) should others have?

Respite care and support for caregivers.

Personal, household care and maintenance.

Identify caregivers/service provider. What type of care/service is needed?


Considerations for Mediation

Safety/risk-taking/autonomy. What safety issues are identified? Is the level of risk understood and acceptable? Should autonomy be limited?

Needs of other family members/caregivers.Dependent children. Grandparents caring for grandchildren. Career demands. Reimbursement for services. Visitation issues.


Why try mediation in guardianship cases?

MEDIATION empowers participants by giving them responsibility and control over the issues and outcomes.

MEDIATION allows parties to move beyond surface issue in disputes and address underlying issues and problems.

MEDIATION allows parties to hear and discuss each other’s side of the story with recognition.

MEDIATION provides a more personal and less Intimidating environment than the courtroom. It encourages creative problem solving within the private, confidential family setting.

Adult Mediation

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Examples of Case Studies

The family who needs to dispose of the family home and sentimental assets.

Children who can’t talk with their parent(s) alone or as adults to adults to change living arrangements and end of life decisions.

Long term care falls short of expectations for the resident and their family. Help is needed.


Areas of Practice

Housing Estate Planning Suspicion of Elder Abuse Probate Property Issues Family Concerns, ie. elderly drivers Adult Guardianship, Partial Guardianship,

Conservatorship.53Barbara Sunderland Manousso, Manousso Mediation

Areas of Practice continued

Employment Issues Health Care Long Term Care Elder Care Transitions Heir Disputes Business Continuation Decisions Divorce



Challenges to the traditional process of mediation Bringing necessary parties to the table Roles and readiness of multiple stakeholders Geographically dispersed Diversity of cultures Ageism Need for awareness of ethical issues: “Do No Harm”

Neutrality -protecting the older adult: bias or fairness? Confidentiality- Elder Abuse, a need for services Informed Consent -When all the facts are not on the table If/How to include older adults to the fullest extent possible

a. Support and accommodations to enhance capacity

Cultural Competence

• How bias, stereotyping and assumptions impact the mediation process

• The wrath of ageism-social acceptance of stereotypes and prejudices diminishes autonomy, self-determination and dignity

• Age, race, ethnicity, gender, birth order, religion etal.motivate how people relate to each other


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Culture is an essential part of conflict and conflict resolution. Cultures are like underground rivers that run through our lives and relationships, giving us messages that shape our perceptions, attributions, judgments, and ideas of self and other.

Culture and Conflict Michelle LeBaron, July 2003.


Cultural Competence for Mediators

• The wrath of ageism-social acceptance of stereotypes and prejudices diminishes autonomy, self-determination, and dignity;

• Mediator awareness of biases, stereotypes, and assumptions:

• Age, race, ethnicity, gender, birth order, religion, etc. influence how people relate to each other


What is a successful mediation?

Mediator know thyself-what values, assumptions do you bring into a mediation about success?

Whose definition of success is applied?

Standards of practice and ethical guidelines for elder family mediation are evolving from existing models


What is a successful mediation?

Awareness of Mediator Competence” provision

Developing mediator competence is a continuing

process of self-reflection together with advanced

elder mediation training, mentoring, practice/study

groups, conferences, and reading and reflecting on

best practices.


Ethics and Best Practices

A Mediator Shall Disclose all Actual and Potential Conflicts of Interest Reasonably Known to the Mediator and could reasonably be seen as raising a question about impartiality. A conflict of interest is a dealing or relationship

that might create an impression of possible bias.

Conflicts of Interest

Competence

A Mediator Shall Mediate only When the Mediator Has the Necessary Qualifications to Satisfy the Reasonable Expectations of the Parties.

Confidentiality

A mediator shall maintain the reasonable

expectations of the parties with regard to

confidentiality.

Quality of the Process: A Mediator Shall Conduct the Mediation Fairly, Diligently,

and in a Manner Consistent with the Principle of Self-Determination by the Parties.

A mediator shall work to ensure a quality process and to encourage mutual respect among the parties.

There should be adequate opportunity for each party in the mediation to participate in the discussions.

The parties decide when and under what conditions they will reach an agreement or terminate a mediation.


In summary

Role of Mediator

To help people communicate respectfully; To encourage disputants to think outside

the box, considering options hey couldn’t see when in the heat of the battle;

To keep the process simple, unstructured, and fair;

To ensure that all parties feel a sense of accomplishment;

To creatively offer options that parties may not have considered.

Roles of Mediator

To develop an atmosphere in which all parties see they are working together to attack the problem and not each other;

To help parties hammer out plans that are manageable and agreed upon by all;

To teach a process that conflicted parties can use at home (or elsewhere) when they face future conflict;

To work toward decreasing instances of elder abuse when caregiver stress gets too much.

Stuff that the mediator can do is….. involve the senior(s) in the process focusing on their

capabilities rather than their perceived incapacities. Attorneys often deal exclusively with a guardian or attorney-in-fact, but in mediation, parents/seniors can be included fully or to their best extent possible.

encourage family members to focus on what is in the best interest of the elder.

help the family members consider as many options as possible, and

help the senior evaluate options, while leaving the decision making to the family.

What does a family mediator Not do?

Make any of the decisions for the family. Rather, the mediator keeps the family focused on priorities and opportunities for clarification.

Provide family therapy, although mediation may prove to be therapeutic.

Practice law while serving as a mediator, although many mediators are also attorneys. However, family members are entitled to legal advice from their attorneys at every step of the process before signing any agreements.

Role for Client’s Attorney

Attorneys will not always be involved in caregiver mediation. If they are involved, particularly cases in which a guardianship petition has been or is being considered, these are suggested approaches for mediators:

Call attorneys during the intake process; get their perspective on the case.

Explain your role, process, and mediation style to the attorneys.

Engage the attorneys as part of the team—get them to buy into the problem solving goal—i.e., attacking the problem, not the persons.

Best Practice for Attorneys Talk about possible goals in mediation

(resolve the problem; open lines of communication; teach conflict resolution techniques; create win/win solution; empower parties, including vulnerable person).

What are the mediator’s goals? What are the attorney’s goals?


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ROLES OF ATTORNEYS

Educate attorneys about the effects of their actions on mediation (e.g., filling motions or writing adversarial letters during the mediation process).

Discuss and clarify their expected role: e.g., will they attend mediation sessions? Will they sit at table? What will be their speaking role? What is their role in drafting, review of documents? Be sure you and they have the same understanding of expectations.

Encourage clients to consult their attorneys about the legal issues and let attorneys know you are doing this.

Attorneys Should

Encourage mediation; don’t talk it down.

Give mediation the time it needs; don’t give up too soon.

Give clients permission to disclose information in the mediation session.

Ways attorneys can be helpful before the mediation:

Gather information: educate parties on legal options and legal effects of actions.

Do reality testing. What happens if the case goes to court?

Help clients make informal medical decision.

Ways attorneys may hinder mediation:

Focus on legal position, legal issues, rather than letting parties determine on issues that need to be addressed.

Continue litigious actions during mediation (filing new motions, etc.)

Ways attorneys can be helpful before the mediation:

Help mediator retain neutrality; e.g. advise if proposed option is unlikely to be approved by judge. (Mediators do not want to get into this type of evaluation of options.)

Allow client to be final decision-maker, once he/she has necessary information and understanding of options, including legal ramifications.

Guardian ad-litem (and sometimes a vulnerable person’s attorney) can be helpful in focusing on interests of vulnerable person, rather than positional approach-moving focus away from guardianship and onto meeting needs.

Pitfalls of Attorneys

Wanting to arrange it all, by not allowing mediator to talk to clients before the mediation session.

Trying to control the mediation process and turning it into an adversarial proceeding.

Pitfalls of Attorneys

Not allowing clients to make decisions or speak for themselves and disempowering clients.

Thinking that being non-adversarial means not being an advocate.

Being too conciliatory.

Not informing client of rights or options.

Whoops, More Pitfalls!

Attacking people rather than problem.

Being too adversarial.

Not understanding the family dynamics behind the legal problem. Seeing a narrow view of issues.

Possible role of attorney during mediation session; practical considerations:

Attorney for vulnerable person should usually attend the mediation session. In many cases, this means that other attorneys may also want to be present.

If there are a large number of attorneys involved, consider some other options, for both manageability and cost control.

Possible role of attorney during mediation session; practical considerations:

If attorneys do not attend, they should be available for consultation to clients before any final agreement is reached, and between sessions. Sometimes they agree to be available by phone during sessions.

When attorneys attend mediation sessions, their role may vary greatly, and depends on abilities of clients, types of issues, number of parties, styles of mediator, wishes of clients, etc.

Suggested Reading American Bar Association & the American Psychological Association.

(2006). Judicial Determination of Capacity of Older Adults in Guardianship Proceedings. Washington, D.C. Available online at http://www.abanet.org/aging/docs/judges_book_5-24.pdf

Benjamin, R. (2008). Escaping the Tyranny of Professionals: Determining fitness to mediate? Mediate.com. http://www.mediate.com/articles/benjamin38.cfm?nl=148

Cohen, J. (2003). Fulfilling Your Obligation on Mediation Capacity.

Mediate.com. http://www.mediate.com/ADAMediation/editorial5.cfm#

Dugan, E. (2006). The Driving Dilemma: The Complete Resource Guide for Older Drivers and Their Families. New York: Collins.

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Suggested Reading continued

Dugan, J. H., & Kardasis, A. (2004). Elder Decisions in Elder Mediation. Mediate.com. http://www.mediate.com/articles/dugan1.cfm

Henry, Stella Mora. (2006). The Eldercare Handbook: Difficult Choices, Compassionate Solutions. New York, NY: HarperCollins Publishers.

Kardasis, A & Larsen, R (2005). When Aging Issues Lead to Family Conflict. Massachusetts Lawyers Weekly: April 11. (Available at www.ElderDecisions.com.)

Larsen, R. & Thorpe, C. (2006). Elder Mediation: Optimizing Major Family Transitions. Marquette Elder's Advisor Law Journal, Volume 7, Number 2. (Available at www.ElderDecisions.com.)

Barbara Manousso


LeBaron, Michelle. "Culture and Conflict." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Research Consortium, University of Colorado, Boulder. Posted: July 2003 http://www.beyondintractability.org/essay/culture_conflict

Mariani, K. (2007). Developing Ethical Standards for Elder Mediation: Questions along the way. BIFOCAL: Bar Associations in Focus on Aging and the Law (Journal of the American Bar Association Commission on Law and Aging), Volume 28, Number 6. Available online at www.abanet.org/aging/docs/Aug_07_ABA_Bifocal_J.pdf

Marrella, D. (2005). Who Cares: A loving guide for my future caregivers. Sanford, FL: DC Press.

Barbara Manousso 87


Nelson, Todd D. (2004). Ageism: Stereotyping and Prejudice against Older Persons. Bradford Books. The MIT Press.

Stum, M., Bubolz, C., & Althoff, C. (1999). Who Gets Grandma’s Yellow Pie Plate Workbook. St. Paul, MN: The University of Minnesota Extension Service. Online resources, and ordering information for workbook and related video available at http://www.yellowpieplate.umn.edu

Susskind, L. E. & Cruikshank, J. L. (2006). Breaking Robert’s Rules. New York, NY: Oxford University Press.

The Center for Social Gerontology. (2002 Rev.). Adult Guardianship Mediation

Manual. Michigan: TCSG. Ordering information available at www.tcsg.org

Barbara Manousso 88

Suggested Reading

U.S. Administration on Aging. (2001). Achieving Cultural Competence: A

Guidebook for Providers of Services to Older Americans and Their Families. www.aoa.gov . http://www.aoa.gov/PROF/adddiv/cultural/CC-guidebook.pdf.

Wood, E. (2003). Addressing Capacity: What is the role of the mediator? Mediate.com. http://www.mediate.com/articles/woodE1.cfm#

Barbara Manousso 89

Great Audience! Thank you!

Manousso Mediation & ADR Services Barbara Manousso, Ph.D. (ABD), M.P.H.

[email protected] http://www.manousso.us


Documents

1 Elder/Adult Family Mediation: A New and Evolving Field Pre Presented at the DRC 2008 Bryan, Texas Barbara Sunderland Manousso, Ph.D. (ABD), M.P.H