Abby Tolchinsky and Ellie Wertheim
New York Law Journal
March 27, 2012
As the baby boom generation enters the graying years, a great number of Americans are facing the many challenges of caring for elderly parents. The issues meet at the intersection of family dynamics and the law. And large swaths of the population will be facing at least some of these issues in the years ahead. With these challenges arise the potential for tremendous conflict among caregivers, family members, siblings and even “helping” professionals.
An outgrowth of the growing field of elder law is elder mediation, which in many ways is too narrow a label for all the types of issues under its umbrella: conflict between a caregiver and an elderly person; conflict among siblings as to decision-making, estate planning, visiting, family business; and guardianship.
The mediator has a variety of process choices to consider when structuring the negotiations. First, he or she must decide whether to meet with the parties separately, prior to an all-party negotiation session. Arline Kardasis, partner at Agreement Resources/Elder Decisions and co-author of “Mom Always Liked You Best,” says a priority is to bring the voice of the elder person into the room. In her practice, the mediators always have a personal meeting with the elder individual in advance of mediation, even when it means a visit to a home or nursing facility. This cuts down on misunderstanding, and develops trust about the process, essential since, as Ms. Kardasis puts it, “the discussions will be about their life, money, medical decisions and where they live.” With respect to the other parties, in order to preserve mediator neutrality, separate meetings in advance of the full family mediation session are conducted either all by telephone or all in person.
Joy Rosenthal, an elder and divorce mediator in New York City, explains that the mediator has additional decisions from the outset: how to include the elder person’s perspective in the mediation process and how that may shift the dynamics of the sessions. If the elder person is to be present for the mediation, the mediator has to ensure full and competent participation, and special accommodations may need to be made. For example, if he or she cannot travel, the mediation may have to take place at the elder’s home. If he or she is hearing impaired, Ms. Rosenthal has employed the help of an advocate who ensures the elder’s full understanding and participation in the process. Finally, if there is short-term memory loss, a surrogate decision-maker may also be present with the consent of the family.
According to Ms. Rosenthal, the mediator’s neutrality in elder mediation cases differs from mediations in other areas of the law. In elder mediation, she explains, “You tend to advocate more for the elder person to the extent you think they need it, being careful not to compromise neutrality with the other parties.”
As with other mediated conflicts, a number of outside professionals may be employed to provide a neutral assessment of areas to be negotiated. Among them: a geriatric care manager, a professional, often with a degree in nursing or social work. Geriatric Care Manager Emily Saltz, director of Elder Resources in Newton, Mass., explains her role as assessing the elder person’s needs, making recommendations for services and resources as well as providing ongoing feedback and monitoring of care as needed.
In the context of mediation, Ms. Saltz is a neutral expert, educating the family how best to care for the elder person medically, cognitively and emotionally as well as articulating the elder person’s preferences, to the extent they have been expressed. In the negotiation, she may highlight the conflict dynamic and its painful effect from the point of view of the parent. She often re-frames the family conflict by trying to encourage siblings to “give mom a good ending.”
A financial expert who may be able to weigh in on planning for the elder person’s medical expenses and housing costs can help the family plan for the elder person’s financial future and understand what that financial landscape looks like. The financial neutral can assist with estate planning and budgeting, while taking into account the tax impact for those who stand to inherit. The impact of this planning will raise different issues for the siblings, areas then ripe for mediation, thus staving off future conflicts among them. The mediation can provide an opportunity for siblings to discuss both inheritance and financial responsibility to the elder parent, who may need supplemental support. And, of course, attorneys for each party may be present, particularly where a guardianship case has been filed in court.
An experienced and/or trusted caregiver may also attend mediation sessions. The role of the caregiver may be that of a neutral party weighing in on the elderly person’s needs and interests. Or, the caregiver may, in fact, be a party to the conflict. This commonly occurs in guardianship cases and in disagreements over how the person’s needs are being met. Naturally, siblings who live near and far may have disparate understandings and appreciations of the quality of the caregiver’s services.
Issues and Approaches
Because elder mediation cases tend to involve a large number of parties, co-mediation is a commonly used model. As Ms. Kardasis explains, it is helpful to have a partner writing on a flip chart, keeping track of the various perspectives in the room, while the other mediator maintains eye contact with the parties. So, for example, when the parties brainstorm, there may be a variety of options regarding where the elder person should live: at home with an aide, near one child or another, in an assisted living facility. And of course, the mediator must help them assess each option, reality-testing the ability to pay and to ensure needs are met as they come to a resolution.
The range of discussions in elder mediation is a broad one. For many families, a hot button topic is whether a parent is still capable of driving. Straightforward on the surface, the underlying concerns and interests are many. Driving tests, once passed as adolescents, are never required again. Thus, children have the unenviable position of struggling with fears over their parent’s deteriorating eyesight or reflexes. They must balance safety concerns for the parent and others on the road, against the very real effect of infantilizing and isolating their parent. And, to complicate matters, siblings may have very different perspectives. For example, a sibling who lives farther away and does not have the burden of managing grocery shopping and doctor appointments, may place more importance on the safety factor. The local sibling may have to assess his or her own ability to be available and all siblings need to look at the budget for taxis or drivers. This of course may lead to discussions as to whether it is appropriate or feasible for the parent to remain living at home.
More complicated issues, from a legal perspective, include division of a family business and how inheritance is distributed among the next generations. Again, the role each sibling plays in caring for the parent has a profound impact on what their view of a fair outcome may be. The mediator must ensure, through these discussions, that the understanding and needs of the elder person are part of the negotiations. Indeed, there are cases that do not lend themselves to mediation. Where there is an imbalance of power and information that cannot be corrected even with attorneys and other professionals participating in the process, such as a family history of abuse or mental illness, says Ms. Rosenthal, the parties are unlikely to come to and/or adhere to a mediated result.
While there may be clear-cut legal questions being negotiated, family dynamics play an important role in the decision-making. As in a divorce, the history, behavior and contributions of each family member inform their views of fairness and potentially fair results. Valerie Marvin, an attorney, mediator and mediation trainer in the greater New York area, points out that in guardianship cases, there are often two parallel discussions. One concerns the parent’s physical care, well-being and finances. The other revolves around the repair of a family relationship. While the core conflict in resolving many elder care cases is really driven by the history and roles of the siblings, Ms. Marvin highlights the point of view of the parent in these negotiations, who is put in the untenable position of choosing which among her children she agrees with—thereby rejecting the viewpoint of the other offspring.
The parent may be just as concerned with future family harmony as she is with her own future. So, while the kids are worrying about whether mom or dad can stay in the home or continue to drive, mom or dad may be more concerned on whether the kids will be able to function as a family going forward or will end up in court contesting a will.
How can a mediator help families accomplish such disparate and challenging goals? Ms. Marvin says, “It begins with recognizing that the mediation is as much about relationships as it is about care. Family members should each have an opportunity to be heard and understood, or else real healing in these complicated relationships may not be possible.”
Abby Tolchinsky and Ellie Wertheim are partners at Family Mediation.