Overview: What is Elder Mediation
Mediation is a facilitated discussion using neutral mediators who help families engage in constructive decision-making around difficult issues and sources of conflict. Mediation provides the opportunity for families to tailor their own decisions to meet their individual needs and concerns. Family members come together in person or by phone conference with a mediator to discuss their interests, increase their understanding of one another, and develop an informed solution or plan and resolve their differences. The mediator meets with all necessary family members jointly and/or individually to help them determine the issues, discuss options, improve communication and flow of information, and determine how to best access information and address the needs of all parties. Mediation keeps the decision-making in the hands of the people who best understand the issues.
To illustrate the difference between a mediated family decision and a decision made by a third party (a court), below are some typical family scenarios with a likely court decision and a mediated agreement. The court decisions below are actual quotes from a probate court judge who was told the facts of each case. The agreements below are actual agreements reached in mediation and are representative of the level of detail and specificity of decisions that families can address, contrasted with the limited range of (legal) issues that a court can address in the same dispute. In each case, compare the impact on the family's relationship of the likely court decision with the mediated agreement.
Scenario 1: Financial Guardian
An 81-year old woman who was single and proud that she had worked all her life in a factory and supported herself on a decent living was living in a nursing home with early dementia. Her brother, her only close relative, had petitioned the court for guardianship over her finances (in some states called a conservatorship) because he wanted to handle payments of his sister's nursing home bills, medical bills, etc. which were no longer getting paid on time or at all by his sister. The sister opposed the court petition and her brother (or anyone) handling her money; she was proud of her self-sufficiency, the fact she'd earned a decent living, and wanted to maintain control over her affairs.
Likely Court Decision as Determined by Probate Judge
"The legal question is whether she needs a conservator. The brother would probably be appointed in this situation."
When mediators questioned the woman about her interests, she felt it was a matter of personal dignity to handle her own money. She admitted that she couldn't keep track of things like she used to and didn't object to her brother handling her bills if she could have some spending money to go to the candy machine, buy ice cream, or use at the beauty parlor. Her brother's concern that her money would be lost or stolen in the nursing home was resolved through discussion about how much money was left over after paying bills each month. It was agreed that the $60 left over each month could be given to his sister after all bills were paid and that it was her money to spend or lose; in the end, he agreed that she had earned it and deserved to decide how it was used. They also agreed that the brother would continue to make medical decisions, as had been his authority since she entered the nursing home, but that he would consult with his sister if possible before making any medical decisions. She agreed at the end of the mediation to a formal guardianship because she was reassured she would have some autonomy.
Scenario 2: Estate case
Two daughters (step-sisters) of deceased father from two different marriages and their mothers (former wives) were heavily involved in disagreement over who got what pieces of personal property and the house. Accusations surfaced over who had already taken the car, the garage door opener, and personal items.
Likely Court Decision as Determined by Probate Judge:
"The question is who should be the Personal Representative of the estate. In this case, a Public Administrator would be appointed who would then propose how to distribute the property. The Public Administrator's plan would probably be approved by the court."
The parties worked out who got what property, item by item. The sisters and mothers had their questions answered about who had removed what items and under what circumstances. Through the mediated discussion, they learned that family members had been given some things by their father or simply didn't have some of the things attributed to them. All "lost" items were located and accounted for and settled cooperatively, misunderstandings were cleared up; eventually the parties became concerned with one another's interests. They agreed to visit the house together so that each daughter would get the personal items from her father that they each wanted. They agreed informally on ways they would work to get their relationship back on track. Disposition was settled on all contested items, and the settlement was entered on the court record. Relieved attorneys said they had not been able to settle this contentious case for months.
Scenario 3: Personal and Financial Guardianship
A mother of four children in advanced stages of dementia was being cared for at home by two daughters. Her two sons were not allowed access to the home, even though one of them was a co-guardian with his sister who lived in the home. The sister petitioned to have her brother removed as co-guardian and denied him access to the home. The sisters voiced displeasure that they had to do all the work; the brothers maintained they could not help if were not allowed access to the home. Paid care workers were instructed by the sisters not to give any information on their mother's health or care to their brothers and they accused co-guardian brother of "interfering" with care workers by calling for information and issuing orders on the mother's care. The sisters accused their brothers of removing family mementos and furniture from the home, which they felt legitimized their denial of access to the home. The sisters had removed all photos and reminders of their brothers from mother's room.
Likely Court Decision as Determined by Probate Judge
"The legal question would be whether to remove the brother as co-guardian. An additional question would be whether to remove the sister for failing to carry out her duties. The request to remove the brother would be denied and the sister would instead be removed."
The sister and brother remained as co-guardians and it was agreed that the brothers and their wives would have access to the family home whenever they wanted.
They decided that the siblings could remove any of their own personal property still remaining in the house, and the siblings would give one another notice before removal. In addition, they decided that mementos and photos of the brothers would be returned to the mother's room.
The co-guardian brother would have access and decision making authority over medical information and all siblings agreed to exchange necessary information for her care by logging information in the mother's care notebook; all siblings would have access to the notebook.
The brothers and their wives would bring groceries, clothing and medications to the home for the family to help out. The co-guardian brother would consult the list of cleaning items needed and would be responsible for buying and bringing those items to the home. The sisters would contact him if they needed help with other items. All bills would be submitted to the brother for reimbursement from their parents' account at the end of each month.
All parties agreed that if communication broke down again, they would return to mediation before going to court. In the end, the family told old family stories and reminisced. They hugged one another before leaving.
If you think mediation can help your family, call us at (800) 535-1155 or (734) 663-1155 or email