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The Team Approach in Elder Care Mediation

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  1. The Team Approach in Elder Care Mediation Texas Association of Mediators ~ 2010 Austin,Texas By Barbara Manousso, Ph.D. (ABD). MPH, NCG, TCGTexas Credentialed Distinguished Mediator Pre

  2. 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.) Manousso Mediation

  3. 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 Manousso Mediation

  4. Who might be at the mediation or facilitation? 6 Manousso Mediation

  5. 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 7 Manousso Mediation

  6. 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 8 Manousso Mediation

  7. Topics for Mediation 9 Manousso 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?

  8. Topics for Mediation continued 10 Manousso Mediation • 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? • Respite care and support for caregivers. • A Few More….

  9. 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? Manousso Mediation

  10. Needs of other family members or caregivers. Dependent children. Grandparents caring for grandchildren. Career demands. Reimbursement for services. Visitation issues. Less restrictive alternatives to guardianship. Manousso Mediation

  11. Topics for Mediation continued 13 Manousso 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?

  12. Topics for Mediation 14 Manousso Mediation • Safety/risk-taking/autonomy. What safety issues are identified? Is the level of risk understood and acceptable? Should autonomy be limited? • Less restrictive alternatives to guardianship. • Needs of other family members/caregivers.Dependent children. Grandparents caring for grandchildren. Career demands. Reimbursement for services. Visitation issues.

  13. Adult Mediation 15 Manousso Mediation

  14. 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. 16 16 Manousso Mediation

  15. Elder Mediation A Hybrid of DR Processes Don’t predetermine the DR process “Let the Forum Fit the Fuss”- Frank Sanders 22 Manousso Mediation

  16. 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 A mix of interest and rights based negotiations Arbitration Case evaluation 23 Manousso Mediation

  17. Elder Mediation A Hybrid of DR Processes 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 Manousso Mediation

  18. The Consensus BuildingModel • Convening / Conflict Assessment / Agenda Building • Everyone heard - no one dominates • Build consensus: “Can everyone live with this?” • If not, “What can you suggest that will be acceptable to the group?” • Avoid “taking a vote” which can createadiscontented minority • Work towards durability and satisfied constituencies Larry Susskind/Consensus Building Institute, Cambridge, MA Susskind, L. E. & Cruikshank, J. L. (2006). Breaking Robert’s Rules. Manousso Mediation

  19. 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 Manousso Mediation

  20. 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 Manousso Mediation

  21. 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 Manousso Mediation 28

  22. Challenges to the traditional process of mediation 29 • 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 • Enhancing a participant’s capacity to mediate - may be possible with appropriate support of a personal advocate/friend or a legal surrogate and with insightful accommodations. Manousso Mediation

  23. How Does Culture Impact Conflict and Resolution? “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.”Michelle LeBaron, July 2003. Manousso Mediation

  24. Cultural Competence Manousso Mediation How biases, stereotypes, 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

  25. Defining Success Manousso Mediation

  26. What is a Successful Mediation? Reality Check about the mediator’s values and assumptions of what a successful mediation is. Whose definition of success is applied to the process- the mediator’s or the participants’? Standards of practice and ethical guidelines for elder/adult family mediation are evolving from existing models. Developing mediator competence is a continuing process of self reflection together with advanced elder mediation training, mentoring, practice/study groups, conferences, reading and seeking out best practices. 34 Manousso Mediation

  27. 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 Benjamin, R. (2008). Escaping the Tyranny of Professionals: Determining fitness to mediate? Cohen, J. (2003). Fulfilling Your Obligation on Mediation Capacity. Dugan, E. (2006). The Driving Dilemma: The Complete Resource Guide for Older Drivers and Their Families. New York: Collins. Manousso Mediation

  28. Suggested Reading continued Dugan, J. H., & Kardasis, A. (2004). Elder Decisions in Elder 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 Larsen, R. & Thorpe, C. (2006). Elder Mediation: Optimizing Major Family Transitions. Marquette Elder's Advisor Law Journal, Volume 7, Number 2. (Available at  Manousso Mediation

  29. Suggested Reading continued LeBaron, Michelle. "Culture and Conflict." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Research Consortium, University of Colorado, Boulder. Posted: July 2003 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 Marrella, D. (2005). WhoCares: A loving guide for my future caregivers. Sanford, FL: DC Press. Manousso Mediation

  30. Suggested Reading continued • 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 • 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 Manousso Mediation

  31. Suggested Reading U.S. Administration on Aging. (2001). Achieving Cultural Competence: A Guidebook for Providers of Services to Older Americans and Their Families. . Wood, E. (2003). Addressing Capacity: What is the role of the mediator? Manousso Mediation

  32. Great Audience! Thank you! Barbara Manousso, Ph.D. (ABD), M.P.H. , NCG, TCG 713-840-0828 Manousso Mediation offers the next Elder and Adult Care Mediation training on Wednesday, March 17th and Thursday, March 18th in Houston, TX. For more info, go to