How to Resolve Family Caregiver Disputes

Three Different Possibilities for Solving Disputes

The predominant system for solving disputes in this country is the local, state and federal court system. The system is based on Roman Law and English common law and is adversarial -- two parties are pitted against each other in a conflict of words. The parties with disagreements produce evidence of wrongdoing or failure to perform to a judge, or in some cases a jury, and the judge or jury weigh the evidence, typically providing relief to the party with the most convincing evidence.

Instead of working out their differences together and reaching a mutual agreement, parties in a court action typically allow a neutral decision maker, either judge or jury, to dictate the solution to the dispute. Remedies to the dispute are generally determined by common law precedent and the judge decides, based on the situation, the size of the award, the extent of the remedy or the severity of the punishment. If the guilty party or the party ordered to provide a remedy fails to comply with the order of the court, the court can use coercive methods such as fines or jail time to force compliance.

Court actions are often divisive, very expensive and time-consuming. Another alternative is arbitration. Arbitration is a method of rendering a decision for disputing parties that can take less time and cost less money than going through the courts. Arbitration can sometimes result in fewer hard feelings as well. The difference between arbitration and a traditional court proceeding is that the court proceeding is typically involuntary for one of the parties, meaning the disputing parties are forced to come together in a court because of a complaint from one of them. With arbitration, both sides agree to sit down and work out their differences.

Arbitration is a voluntary alternative although occasionally it can be ordered by a court. Both sides in the dispute sign an agreement that they will use arbitration instead of the court system and that the decision of the arbitrator will be final. There can be no appeal. But like the court system, an arbitration agreement signed in advance of any current dispute will also result in one of the parties being forced to appear for arbitration if a dispute occurs. Decisions from arbitration can also be enforced legally. The arbitration process is similar to a court process where witnesses and evidence are produced but it is generally much simplified and more straightforward than the court system. The arbitrator weighs the evidence and renders a decision in favor of one of the parties.

Mediation is a non-adversarial approach to solving disputes. Mediation is a process of bringing two or more disputing parties together and having them mutually negotiate a solution to their disagreement. The mediator is not a judge and does not render a decision but is there to make sure that communication flows freely between the disputing parties. Mediators are trained in the art of negotiating resolutions. Unlike the court system or arbitration, parties to a mediation generally cannot be forced involuntarily to meet. They must mutually agree to come together. Arbitration and mediation are often called "alternative dispute resolution" because both methods avoid using the court system.

What Is Elder Mediation?

It is amazing how quickly formerly cordial relationships between family members will sour when the family has to deal with care of elderly parents or inheritance at their death. Sometimes the consequence of dealing with the final years of elderly parents can break families apart and create long-lasting animosity. Elder mediation is a promising new tool to help families heal broken relations, solve difficult issues arising from dealing with elderly parents or prevent misunderstandings or problems from happening in the first place.

Mediation has been around for a long time but only recently is it being applied to solving problems with eldercare. The term "elder mediation" is still not widely used and someone seeking services in this area would most likely contact a "family mediator". Elder mediation is a rapidly growing specialization in the area of family mediation. Family mediators typically handle disagreements and negotiations in divorce, juvenile cases, parenting disputes and the design or settlement of estate plans. As the population ages, as children move further away from their parents and as more traditional caregivers find themselves in the workforce, there is more tension being created among families caring for their elderly loved ones. Mediation can help with problems arising from this tension.

A mediator is a neutral third party who typically has no relationship with the family members who are in dispute or disagreement. The mediator brings the disputing people together, sits them down in the same room and causes them to talk to each other. The mediator's role is to negotiate a resolution to the problem that is causing the disagreement. The mediator does not dictate or make decisions for the disputing parties but finds ways to facilitate communication between them. The goal of mediation is to produce a written agreement that all parties will abide by.

It is amazing how little some families communicate with each other. Perhaps when they grew up together they were not accustomed to come together as parents and children and work out problems. And now that children are older and taking care of parents they don't have this family council strategy to rely on. It may seem unnatural to them. But that is often exactly what is needed, especially in situations where perhaps one child is caring for the parents and the others are left out of the loop.

Children all have a common bond to their parents and as a result a common obligation or responsibility to each other. When disagreements arise, suspicions begin to grow. Suspicions or distrust often lead to anger and the anger often leads to severing the channels of communication between family members. This breaking up of ties can occur between parent and child or between siblings or between all of them. It is often at this point that a neutral third party can come in and repair the damage that has been done and help correct the problems that have come about because of the disagreement. A mediator experienced in elder mediation is a perfect choice for solving disagreements due to issues with the elderly.

On the other hand mediation is not always needed when disagreements arise. Some families remain closely connected through frequent visits with each other or on the telephone. Or in today's modern society they may use the Internet as well. It is important that when a member of a closely knit family recognizes a potential relationship problem because of caregiving, inheritance or disturbing behavior from the parents, that person should make sure that the family comes together and resolves the issues before they become disputes.

Advisers to family members such as attorneys, care managers or retirement planners should be aware that potential disagreements can lead to bigger problems with families. These advisers should be quick to recommend to the family member who is their client to get the family together and work out the disagreement before it becomes a major problem. If the client is not willing to do this then the advisor should recommend a competent elder mediator.

Types of Providers, Fees, Training and Licensing

Community mediation services are generally provided free of charge to socially needy or poor families. Or they may charge a small fee ranging from $20-$50. Their funding may come from a variety of sources such as state legal service programs, nonprofit community service organizations, grants and foundations and local and state government. Services are typically provided for solving disagreements or disputes in the following areas.

• landlord tenant disputes
• neighbor to neighbor disputes
• employer/employee disputes
• disputes between service providers and their customers
• parents having conflicts with their teenage children

Community mediation services may also become involved in elder disputes. A family or an adviser to a family may want to see if a local community mediation service can provide help before hiring a private mediator.

Companies specializing in dispute resolution can also provide elder mediation services if a member of the firm specializes in this area. These companies, however, are more likely to serve deep-pocketed corporate clients and their fees might be prohibitive. Such firms may charge an upfront administrative fee of $500 or more before they will even get to a session. Then they may charge $200 or more in hour for their services in a formal mediation. And finally they will charge an additional fee for writing up a final agreement.

Independent mediators may be individuals who have training in mediation and who specialize in specific areas of mediation. These are the people most likely to be of help to families needing elder mediation. Some of these people may actually specialize in elder mediation and they are likely to have a background as a care manager, a social worker, a gerontologist or a psychologist.

Those who specialize in elder mediation are most likely to have a background dealing with issues with the elderly. Others of these providers may be able to help with elder mediation but their specialty may be more broad and they will typically present themselves as being family mediators. Depending on their reputation and their effectiveness, independent mediators may charge anywhere from $50 per hour to $150 per hour. Typically they do not charge any additional fees other than their hourly rate.

Attorneys and court-connected mediators are most likely to be associated with mediation in the court system. For instance, attorneys who also act as mediators may be providing an additional source of revenue for themselves in states which require mediation in certain legal proceedings.

A court connected mediator may be a free service of a court ordered procedure. Mediators with a legal background are less likely to specialize in elder mediation but that may not always be the case. For instance, some elder law attorneys may have found as a necessity of their practice a need to provide elder mediation.

They must however avoid a conflict of interest with their own clients unless the family is willing to agree to a mediator who has a connection to one of the complaining parties. This is usually not an acceptable position to the other family members since having an attorney as a mediator who represents a member of their family is going to make the rest of them highly defensive. An elder law attorney is most likely to become a mediator on recommendation from a professional adviser such as a retirement planner or a tax adviser. Attorneys specializing in elder mediation are going to charge about the same hourly rate that they would charge for their legal services.

Because they provide no legal services or render judgments and because they provide no other services other than facilitating communication, mediators currently have no licensing requirements in any states. And there are no definite training requirements as well. Theoretically anyone wanting to be a mediator could simply hang out a shingle and start providing services.

But the majority of mediators have been through a training program either offered through a local college or university or from a school specifically organized to offer mediation training. Since it is a rapidly growing field, states will likely require specific training, licensing and continuing education for mediation services in the future. Or mediators through their professional societies may require some sort of a certification based on training or experience.

Since there are currently no standards for mediators, it is difficult for someone requiring these services to know whether a particular provider is qualified or not. Qualification based on training or licensing may not be the only determinant whether a mediator is effective. Some people regardless of training have a natural talent for getting opposing parties to agree with each other. And the person with a knack for mediating might not have the most elegant technical qualifications. So how can families find the right person who will "get the job done?" We will discuss in more detail at the end of this section how to find a qualified mediator.

The Value of Using Mediation

As people age, the relationships with their families sometimes change. Impaired mental and/or physical abilities exhibited by the parent often cause a child to view the parent in a different light. Relationships created by caregiving can often cause tensions among siblings. And sometimes greed, generated by the anticipation of obtaining their assets when the parents are gone, can have a surprisingly huge negative impact on the behavior of siblings and parents. Below are some of the changes that can occur in family relationships.

• Roles can reverse and the child becomes the parent and the parent becomes the child.
• There may be a loss of respect from children due to the unsavory appearance, errant behavior and disability issues of parents.
• Because of the change in the environment or the perception of the change there may be behavioral changes in a parent receiving care and reactive behavior changes in the caregiver.
• Other siblings may display jealousies, lack of respect or distrust of a sibling caring for parents.
• Aging loved ones may display the same lack of respect or regard for a child or a spouse caregiver.
• The childlike dependence of a care recipient may allow a spouse or child caregiver to take advantage and engage in physical or financial elder abuse.
• There may be a disagreement with family members over how to handle a loved one's lack of mental capacity
• The disposition of parents' assets can create greed, resentment, heated discussions and even physical attack between squabbling siblings.

For unexplained reasons a family may disregard a change in relationship and instead of finding a solution resort to name-calling and isolation of the perceived troublemakers. Perhaps families don't have the skills to solve their own disputes. Perhaps they think disputes are a normal consequence of caring for aging loved ones. Perhaps there is a lack of respect for a sibling due to divorce and failure to maintain a job and this attitude blocks any dialogue between family members. Maybe the behavior changes have occurred over a period of time and the family has not recognized what has happened. Whatever the reasons for not dealing with the problem, it may be impossible for the family to find a resolution internally. Without knowing it the family needs help from a professional.

Family problems have always existed but in the past we were rarely exposed to a family's dirty laundry. Perhaps this generation of the elderly is different from the one preceding or the generation of baby boomers currently moving into their elder years. The current cohort of Depression and World War II era elders may be creating more tension in their families by refusing to discuss financial issues and showing an unwillingness to share their feelings, intentions or wishes.

Or there may be other reasons for the apparent modern dysfunction of families dealing with the elderly. Modern families are often living further apart and it is more difficult to communicate. Or because of the parent-child relationship, parents may not respect their children's views but be more willing to respect the views of a neutral expert. Perhaps it is the openness of today's society that is allowing us a glimpse into what has always existed. Or maybe more is coming to light because traditional caregivers are working and parents are being exposed more to services of professionals who are being hired to come into the home.

Professionals may recognize the problems with the family relationship where the family hasn't. Whatever the reason for an apparent increase in elder related disputes, families and advisers should know that professionals are available to solve problems the family is probably not capable of solving itself.

Mediation can achieve results that the family by itself may not be capable of realizing or have the expertise of achieving. Here are some reasons that make mediation so valuable.

• Allows for a trained expert on communication to give the family a perspective it could not gain by meeting together on its own;
• Allows all involved to meet and prevent problems from arising by anticipating situations that may cause disputes;
• Allows for a meeting in a relaxed atmosphere where people are more likely to share their feelings;
• Allows for the mediator to invite experts such as care managers or other care providers into the meeting to educate the family and give them a new perspective;
• Allows individuals to discuss undisclosed or undiscovered issues that may be causing the dispute;
• Allows parents to focus on their abilities rather than their limitations;
• Allows children to come up with and consider options not thought of previously;
• Allows those sheltering feelings to express themselves in complete confidentiality;
• Allows the family to come closer together instead of drifting further apart;
• Allows uninvolved family members to become involved;
• Allows parents to maintain their dignity by being involved in making decisions for themselves;
• Allows parents to express wishes and desires that had previously gone unuttered;
• Allows everyone to agree on the disposition of parents' assets;
• Allows for a neutral third party to challenge family members and make them take responsibility for their actions;
• Allows for participants to feel personally empowered with their ability to handle problems themselves;
• Allows for consensus of all involved which in turn creates a much higher rate of compliance with the plan than with any other process; (the success rate for compliance with elder mediation is estimated to be about 80% to 85%)
• Allows for and requires a written plan with specific responsibilities which makes compliance feasible.

Disagreements Suitable for Elder Mediation

Elder mediation is a brand-new field and is still finding its roots, but those active in this area have identified the following issues with older people that can lead to disagreement, conflict or dispute.

• parental living arrangements,
• health and personal care (such as driving ability),
• provisions in the case of terminal illness,
• home upkeep and repair,
• financial concerns,
• nursing home care,
• trust and estate issues,
• guardianship,
• power of attorney,
• relationships between parents, grandparents and grandchildren.

Court Ordered Mediation

It is becoming more common in some states for the court system to order mediation because of state laws that require it with certain civil cases. Some states require mediation in divorce property settlements, custody of minor children, with certain employer/employee and company/customer disputes and sometimes with small claim commercial disputes. At least one state requires mediation as the first step in a contested divorce process. And it is becoming more common for judges, at their discretion and when court jurisdiction allows it, to order mediation in any civil case where the judge thinks it might be appropriate.

They do this because realistically only about 2% of all civil cases result in a verdict. About 98% of disputing parties negotiate a settlement before a verdict is passed, usually before the trial even starts. In order to save the court time and effort, or at the request of the complaining party, a judge may require the disputing parties to come together before a trial and attempt a solution through mediation first. If mediation does not work then the trial can proceed.

Although it is rare for disagreements concerning the elderly to end up in court, there might be two or three situations where this might occur. The family may go to court to contest a will or there may be a civil action brought by family members against a member of the family suspected of stealing assets or one or more members of the family may press the court for a guardianship or conservatorship for an elderly family member. In all these cases it is possible the court could order a mediation. A court ordered mediation would be most likely occur in a contested guardianship situation where some members of the family want the judge to declare a parent incompetent and others of the family do not want this.

Getting the Parties Together

There are number of key problems encountered in getting a family together for a mediation session. The first of these would obviously be a denial that mediation is needed or can help. If a family member is initiating an invitation to other members of the family to attend mediation, and there has been little communication to this point with the others, an invitation would likely be rejected. A member of the family who has recognized the need for mediation would have to find some way to convince the others that it is needed. Generally, the acknowledged leader of the family such as the eldest or the person who has the most respect is going to succeed if that person is also requesting the meeting.

If a non-leader is initiating the request, that person must win over the family leader in order to be successful. Or another approach might be the parents requesting such a meeting if one or both of the parents are capable of doing that. Another approach might be using a trusted family adviser such as an attorney or a church leader to initiate the request. Yet another approach may be to hand the responsibility for invitation over to the mediator who would then contact each person, explain what is going on and invite everyone to an initial meeting to outline the concept of mediation.

A number of mediators provide a 30 or 40 minute video dramatizing a mediation meeting. The purpose is to allow those who are skeptical to see a live example of how it works.

Another key objection to mediation is the cost and who is going to pay for it. The mediation process could cost $200 to $1000 based on the hourly fee and the amount of time needed. If a community mediator is used there may be no cost or at the most $50. If a family member is initiating the request, that person may be willing to shoulder the cost entirely. Or if the family comes together for an initial meeting to be convinced of the need for continued mediation perhaps the family member could cover that initial meeting cost and then if other members of the family agree, they might all consent to put in their share of the remaining cost.

Knowing that participants must be convinced of the process first, many mediators will offer a no cost initial consultation. If an adviser is recommending mediation to one or more family members, that advisor will have to justify the cost. Even though people are willing to pay $200-$1000 to repair their cars, make repairs to their homes or to take a trip, the same money put towards mediation might seem to them a waste. They would have to be convinced of the value.

Another deal breaker is that in order to be successful all parties to the disagreement or dispute must be involved. If one or more of them refuses it would be impossible to go on. Or another issue related to this is that perhaps one or more people are willing to participate but they live a great distance away and it is difficult for them to come together with the others. In this case, the mediator can arrange for them to participate through voice conferencing or Internet videoconferencing. Or the initial face-to-face meeting might be arranged but subsequent meetings, if necessary, might be conducted over the phone or through the Internet.

Choosing where to meet can sometimes be a challenge as well. If family are scattered over a great distance it may be more convenient not to hold the mediation in a mediator's office but perhaps in a place convenient to all but where no interruptions can occur. Sometimes, meeting around a conference table can be confrontational. A better setting might be in someone's living room or around someone's dining room table.

A family lawyer may attend as well as religious advisers but these people are there only as support or for informational input and are not part of the negotiated process. Everyone would have to agree to allowing outsiders to come in since everything discussed in a mediation process is confidential and everyone agrees that all written notes or other things discussed only stay in the meeting. The mediator may also get permission from the participants to invite experts such as a care manager or a home care provider. In many cases the mediator may likely already be a care manager.

How a Mediation Works

Preliminary Procedures

Prior to the first formal session, participants will receive a written copy of rules and procedures. This may include a description of how a session is conducted and the rules that everyone agrees to abide by. The most important of these is confidentiality. The parties will agree to not divulge or talk about anything discussed during the mediation. Any notes, including those of the mediator will be destroyed. Keeping information confidential is a key element of achieving success in the mediation process. Unless it has been ordered by a court, the outcome of mediation cannot be used in any court proceeding. Each participant may also be asked to fill out a form giving the mediator some background on that person. The document will also discuss the fees and how they are to be paid and finally the participants will be asked to sign a statement that they will not hold the mediator legally responsible for any problems that may result from mediation.

The Meeting

Mediation is not just an informal get-together but a structured process guided by the mediator. After everyone has come together and the meeting officially convenes the mediator will make introductions, then describe the rules that the meeting will follow and then urge all who attend to be open-minded and to cooperate.

The next step would be an invitation to those who are in disagreement to describe their side of the issue, how they have been affected and the outcome they would like to see. This is not a discussion and others are not allowed to argue or interrupt. Everyone has his or her turn. After everyone has spoken, the meeting may be opened to comments from the group to attempt to draw out additional issues or to clarify the issues already expressed. Argument is not allowed and it is up to the mediator to make sure that the purpose of the meeting is to communicate and not to fight.

At some point the mediator restates or translates the essence of the disagreement and continues to restate if necessary until all participants agree to accept a common definition of what the dispute entails. Once common ground has been reached the next step is to come up with a solution that is acceptable to all.

The mediator might use several different methods to facilitate communication, to recognize the issues and to come up with strategies that will be acceptable to all. If participants are unwilling to share their thoughts, the mediator may have to pick a side and become confrontational in order to draw out information. But it is not the job of the mediator to predetermine which side of the dispute is the right one and a confrontational technique would soon be abandoned after the intended outcome is achieved. Another favorite technique is to encourage brainstorming to come up potential solutions to the problem.

According to Elisabeth Seaman, the founder of Conflict Prevention & Resolution Services,

"My aim is to help people get a better understanding of each other,"... "The point is to get people listening to each other and in such a way that they understand another's point of view," she continues, "They don't necessarily have to agree with each other, but solutions are only possible when each party respects the integrity of the other."

The next step in the process is to come up with a solution that is acceptable by all. It is up to the mediator to keep the momentum going towards this common goal. The mediator will never suggest a solution but will allow the parties involved to design their own.

Once all have agreed to a resolution, the final step is for the mediator to produce a written agreement based on this mutually accepted solution that all parties will sign. The agreement is not a legal document, but the process used to produce it generally results in a very high compliance with its provisions. The parties can agree to make it a legal contract and enforceable in court but in most elder mediation cases there would probably be no need to do this.

If communications break down and no immediate solution is found, this is not necessarily the end. Family members may agree to go home and think about it and come together at a subsequent meeting. Or the process of mediation may have opened doors to communication that were not previously there and possibly over time an informal solution may evolve with family members more willing to talk to each other.