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Elder/Adult Family Mediation: A New and Evolving Field

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. Used with permission given on 7/29/08. What is this field of practice?. Family Mediation. Advantages of elder mediation.

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Elder/Adult Family Mediation: A New and Evolving Field

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  1. 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.

  2. Used with permission given on 7/29/08. Barbara Sunderland Manousso, Manousso Mediation

  3. What is this field of practice? Family Mediation Barbara Sunderland Manousso, Manousso Mediation

  4. Advantages of elder mediation 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).

  5. 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.

  6. 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.

  7. Elder Mediation vs. Court

  8. Advantages of elder mediation Gives seniors input into making decisions that affect them and the family.

  9. 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).

  10. 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

  11. 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 facility Interacting with the facility administration • Eventually, end-of-life, burial and funeral decisions Barbara Sunderland Manousso, Manousso Mediation

  12. Face of Senior: A rolling stone?!

  13. 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;

  14. 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.

  15. 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.

  16. Critical Theorists Critical theorists, starting with JurgenHabermas, 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.

  17. 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.

  18. 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.

  19. 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

  20. 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 Barbara Sunderland Manousso, Manousso Mediation

  21. Intakecontinued • 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. Barbara Sunderland Manousso, Manousso Mediation

  22. 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. Barbara Sunderland Manousso, Manousso Mediation

  23. 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! Barbara Sunderland Manousso, Manousso Mediation

  24. Elder Mediation A Hybrid of DR Processes Don’t predetermine the DR process “Let the Forum Fit the Fuss”- Frank Sanders Barbara Sunderland Manousso, Manousso Mediation 25

  25. 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

  26. Loyalty dynamic • To the family of origin • To the elder • To specific siblings • To the family of procreation

  27. Hidden agendas MoneySecurityAgreements and contractsFuture plans and relationships

  28. 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.

  29. Perceptions that make the difference. To all parties.

  30. 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.

  31. 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.

  32. 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.

  33. 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 Barbara Sunderland Manousso, Manousso Mediation

  34. 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

  35. 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. Barbara Sunderland Manousso, Manousso Mediation

  36. 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 Barbara Sunderland Manousso, Manousso Mediation

  37. 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 Barbara Sunderland Manousso, Manousso Mediation

  38. Who might be at the mediation or facilitation? Barbara Sunderland Manousso, Manousso Mediation

  39. 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 Barbara Sunderland Manousso, Manousso Mediation

  40. 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 Barbara Sunderland Manousso, Manousso Mediation

  41. 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? Barbara Sunderland Manousso, Manousso Mediation

  42. We need to talk Barbara Sunderland Manousso, Manousso Mediation

  43. 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? Barbara Sunderland Manousso, Manousso Mediation

  44. 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? Barbara Sunderland Manousso, Manousso Mediation

  45. Needs of other family members/caregivers. • Dependent children. • Grandparents caring for grandchildren. • Career demands. • Reimbursement for services. • Visitation issues. Barbara Sunderland Manousso, Manousso Mediation

  46. 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? Barbara Sunderland Manousso, Manousso Mediation

  47. 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. Barbara Sunderland Manousso, Manousso Mediation

  48. 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 personaland less Intimidating environment than the courtroom. It encourages creative problem solving within the private, confidential family setting. Why try mediation in guardianship cases?

  49. Adult Mediation Barbara Sunderland Manousso, Manousso Mediation

  50. 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. Barbara Sunderland Manousso, Manousso Mediation 52

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