Caring for an older loved one can be an emotional time. There are often difficult decisions to make and the care recipient is not always able to make those decisions for themselves. Sometimes this can lead to conflict when family members disagree about the best course of action.
When these conflicts begin to interfere with the quality of care for the older adult, it might be time to consider elder mediation. Like other forms of mediation, elder mediation involves having an objective, outside person help resolve disputes and provide suggestions based on the elder's care needs. In this case, differences are about figuring out how to best care for an aging loved one.
Common issues addressed in elder mediation include:
Housing. Can the older adult stay at home? If not, should they be moved to assisted living, move in with a child or another relative, move to a city closer to a relative?
Caregiving duties. Who should do what? How should financial costs of caregiving be addressed? How should suggestions made by someone other than the primary caregiver be given and received?
Finances. How should businesses or property be divided or sold?
Decision-Making. Who should be given guardianship or power of attorney?
End of life decisions. Who should be involved in decisions around advance directives, living wills, organ donation preference, funeral preplanning, etc.? If the older adult is not able to make decisions, how to determine what is in their best interests?
Wills, Trusts, and Estates Conflicts. How will assets be distributed and family disputes about assets be resolved?
Driving and other Safety Concerns. When should the older adult stop driving and how will that decision be made? Who will provide transportation to medical appointments, social events, church, etc.?
Mediation is not an easy process. All of these disputes are embedded within the context of prior and existing relationships and family roles. Although mediation is not counseling per se, these family dynamics need to be discussed to the extent that they affect the issue at hand and the ability to plan for the present and the future. The earlier in a conflict mediation begins, the better.
It might be time to seek elder mediation when:
You are not able to say what you need to say
The older adult is not receiving the best possible care
Nothing you’ve tried so far has worked to resolve the situation
The tendency is for family caregivers to wait until the situation is unbearable. Sometimes family conflict even escalates to the point where guardianship petitions are filed. Frequently these petitions are unnecessary. In these cases, mediation is often entered through court referral.
No matter how you get to mediation, there are a number of things to think about when selecting a mediator.
Background and experience. This includes experience in mediation, but also in elder care and family issues. Having mediation training and experience is important, but understanding the specific issues around elder care and family dynamics is important too.
The type of mediation model they use. The most common elder mediation model used is a facilitative model. In this model, mediators focus on the process and relationships among the parties, but they do not advocate for individual participants. As neutral facilitators, they don’t provide information, advice, or support for any particular side. Some mediators use an approach similar to settlement conferences where they meet separately with each party, evaluate the strength of each case, and then offer an opinion. Others use a more evaluative model described below.
Their process. This includes things such as how many meetings and the length of those meetings, where the mediation takes place, what options they have if not everyone can meet in the same city, how they prepare participants for mediation, and how they decide who should attend.
These last two – deciding who should attend and preparing participants - are particularly important.
Deciding who should attend. Elder mediations are complex and can include a lot of people. This means not only family members, but also potentially friends and any other significant people who are willing and able to provide support. Service providers from hospital, nursing home, and community services may also be part of the process.
The process works best when the older adult can participate as a rational and autonomous adult. Sometimes, however, they may be very frail and vulnerable, physically and/or cognitively. In this case, the mediator may need to use an evaluative mediation model that allows them to provide information, make referrals and advocate for the older adult. In other instances, the mediator may take facilitative approach while a social worker or other professional participates in the mediation as an advocate for the older adult.
Preparing participants. Most of the time mediators do not meet with parties ahead of mediation. Preparation for the participations is limited to a short introduction at the beginning of each session. In elder mediation, however, where the issues are very complex and rooted in family dynamics, mediators may need to take a more a therapeutic approach. In this case, they would conduct an in-depth assessment of the family system and work with everyone ahead of time to prepare for mediation. This might include addressing ongoing conflicts, family history, and power struggles that could potentially derail the mediation.
Potential downsides to elder mediation
Research on elder mediation is limited and does not provide solid evidence about whether mediation helps or hurts older adults in conflicts around caregiving or adult guardianship. One recent study found that the theory around mediation and its ability to empower participants and the reality of practice did not always match. Here are some key findings from this study that may help inform decisions around whether or not to seek mediation:
Ultimately, the disputes that arise around caregiving and adult guardianship are about power imbalances. Mediators have specific tools they use to address these imbalances during the process such as establishing and enforcing ground rules, meeting with participants individually to make sure everyone has a chance to speak, and directly asking passive participants to contribute. While important, this process doesn’t change power imbalances beyond the boundaries of mediation.
Participants come in with assumptions about older adults shaped, in part, by societal norms which are often ageist and denigrating of elders’ ability to make decisions and act on their own behalf. Mediation itself is not likely to change that and, since it is a private process outside the legal system, there are no due process protections or legal oversight to ensure rights are upheld.
Older adults are more likely to decline mediation seeing it as an intrusion into private family matters. However, once the legal system has been brought into the dispute through a guardianship petition or other court filing, they often see mediation as a more agreeable and more private alternative.
Participants often enter mediation more focused on their power relative to other participants than on the opportunity to solve the problem together. They sometimes resent pressure to discuss emotionally painful family history and participants who feel they would win in court can be particularly resistant and resentful of the process.
All of these challenges highlight the importance of finding the right mediator and being properly prepared by that mediator for the process.
Here are some additional resources with information about elder mediation and information about mediators in California and elsewhere: