I suspect many of us have experienced, at one time or another, how quickly extended family conflicts can unfold, and the damaging impact on valued relationships that often follows. Identity and values conflicts among family members may emerge and communication may unravel.
Even in the closest of families, feelings about issues relating to aging parents or other loved ones run deep, and adult children and grandchildren may have vastly different perspectives regarding how evolving challenges should be managed.
It is not uncommon for longstanding sibling rivalries to manifest as family members attempt to tackle – often without the support of a neutral third party – issues involving caregiving roles and responsibilities, residential options, decision making, and the like.
Facilitated family meetings, and/or mediation, can help families productively work together to address the wide range of issues that increasingly face elders and adult families. Guided by a third party neutral who can assist in building agendas, structuring discussions, sharing information and resources, and helping participants manage triggered and sometimes long dormant emotions, families become more capable of focusing on the topics at hand and working toward consensus-based solutions.
One of the most significant challenges faced by neutrals doing this work involves convening the group and getting buy-in from all stakeholders. Patience is required. It is often weeks or months after the first family contact before a joint meeting takes place, if at all. In the interim, the neutral may be participating in multiple conversations and emails with various family members (and sometimes their attorneys) regarding the process, who will participate, how fees will be shared, where it will take place, and other process-related issues. Several pre-mediation communications with various parties are usually necessary to address these preliminary process questions.
Facilitated family discussions cover a wide swath of issues. Topics participants commonly discuss include:
• Living arrangements for aging family members
• Caregiving roles and responsibilities
• End-of-life planning
• Who will serve as Power of Attorney and/or health care agent
• Wills, trusts, and inheritance issues
• Family business management and succession
• Disposition of personal property
When facilitating or mediating discussions of this nature with adult families, it is essential to have sufficient topic-specific knowledge, so one can share with families information and resources germane to their concerns. Participants may be unfamiliar with Continuing Care Communities, Aging Life Care Managers, advance directives, etc. They may not understand the differences between a living will, a durable power of attorney, and a health care proxy. They may not recognize the value of a neurological evaluation to help inform their discussions and decisions. They may be unfamiliar with elder law issues germane to the topics they wish to explore, for example, Medicaid look-back rules. The mediator who couples general information with identification of resources and referrals is much appreciated.
Facilitated family meetings routinely involve large groups.
Alternative Dispute Resolution (“ADR”) professionals working with adult families should carefully consider whether a case would benefit from co-mediation or co-facilitation. Co-mediation can enrich the process and bring tremendous value to the clients.
Both the number of participants (sometimes including attorneys) and the level of conflict is often significant; thus, thoroughly attending to and capturing all that is going on in the room can be difficult for a solo neutral. When listening deeply to the speaker, it is easy to miss the reactions of those on the other side of the table, or the side conversations taking place across the room. A co-mediator brings another set of eyes and ears, another layer of experience and expertise, and another valuable perspective regarding structuring the process and evaluating what to do in the moment. As in all process-related decisions, when considering whether to work with a co-mediator and/or who the co-mediator might be, the overarching consideration should always be how to best serve the family and provide the level of service appropriate to their situation.
Two other vital considerations in working with adult families and elders involve screening – for abuse, and for capacity to participate.
When working with adult families, it is important to understand and remain mindful of the potential for elder abuse and/or neglect – physical, emotional, or financial. During intake or convening, occasionally a family member will express concern that abuse or neglect may have transpired in the past, or worry that it might occur in the future. To assess the appropriateness of any family matter for ADR, as well as one’s own capacity to capably work with a particular family, the neutral needs to be knowledgeable about these topics and gently but fully explore these concerns.
A vital step in adult family facilitations or mediations involves separate meetings (often by phone) with each participant in advance of the joint family meeting. These meetings provide the facilitator/mediator additional information regarding a number of topics, including each party’s interests, concerns, goals, and hot buttons. In cases involving an elder, meeting privately with the elder – in person whenever possible – gives the mediator a view of the elder’s ability to participate in the process and to meaningfully represent his or her own interests and desires. While it is not the neutral’s role to make a legal or medical evaluation of capacity, it is incumbent on the neutral to consider whether the elder seems able to follow a conversation; can express him/herself clearly and cogently; feels capable of expressing his/her wishes in the midst of family members who may be pushing the elder in different directions; and/or desires to be present during a larger family meeting. Together with the elder and the family, and perhaps aided by medical assessments, the neutral needs to think carefully about how best to bring the elder’s voice into the room.
Finally, neutrals also should anticipate the logistical and scheduling challenges inherent in family facilitations. With family members sometimes scattered across the country, flexibility is key. This may require meeting on a weekend, traveling, respecting the needs of parties in different time zones, and/or permitting some parties to participate in person and others by audio or videoconference. Of course, all parties should be in agreement about whatever alternative arrangements are made.
Facilitated family meetings and mediations are enormously challenging and rewarding. Patience, experience, knowledge, and planning are the foundational keys to success for any mediator or facilitator undertaking this important work.
By Halee Burg. (This article was originally featured on September 17, 2018 in the blog of the Massachusetts Council on Family Mediation.)
About the Author:
Halee Burg , J.D., is a mediator at Elder Decisions® – a division of Agreement Resources, LLC, in Norwood, Massachusetts. Halee mediates disputes among adult family members regarding caregiving, living arrangements, guardianship, family communication, selection of individuals to serve as a health care agent and/or attorney-in fact, estate planning and inheritance, and family property distribution and management (real and/or personal property).
Halee also mediates extensively with couples going through divorce and working through post-divorce, parenting, and/or co-habitation issues. Halee can be reached at halee@ElderDecisions.com or 617-621-7009 x28.