He was inspired to write the article after his older parent and siblings dealt with a painful family problem, on their own. Afterward, when his colleague Anne Tergesen told him about elder and adult family mediation, he realized how helpful a mediator would have been to his family. (Ms. Tergesen also interviewed me for her Wall Street Journal article on elder mediation, which you can access by clicking here.)

Mr. Ruffenach’s article was published last August. You can read it by clicking here. While his article did not actually address the question he posed, by describing elder mediation and discussing its benefits, his article, in part, remedied the problem: now more people know about elder mediation. Still, too few people even know we elder mediators exist and how vital we are to fostering caring and connection amidst an adult family’s struggle to resolve highly charged, divisive problems.

In this blog, I offer some answers to Mr. Ruffenach’s question about lack of public awareness of our services. Here are four reasons we don’t come to mind as often as we could:

1.  Resignation

Families who don’t communicate well are usually resigned to repeating their familiar, ineffective patterns. For their lifetime, perhaps for generations, unresolved family conflict has been the norm. Whether their failure to seek help is due to inertia, apathy, despair or what cultural anthropologist and teacher Angeles Arrien describes as an “addiction to what’s not working,”  they don’t seek help to make things better. Sometimes these families do find their way to a mediator who helps them pull together to resolve difficult situations. Perhaps with better efforts at publicizing our services, more “resigned” families will find their way to one of us.

2.  Confusion between Mediation and Therapy

Family members may have heard about mediation, but mistakenly equate it with therapy. If they are open to therapy, this confusion is easily addressed by their mediator. But if a majority or even a strong individual family member is averse to therapy and equates mediation with therapy, elder mediation will be a very hard sell. For those exploring alternative ways to support family dynamics, resources like https://detoxathome.co.uk/ may offer valuable guidance on personalized approaches.

3.  Confusion between Mediation and Arbitration

When I started mediating more than 20 years ago, one of the first tasks in promoting my mediation practice was to teach lawyers the difference between arbitration and mediation. Although lawyers now grasp the difference, the public, it seems, remains confused. Consider a June 30, 2012 headline in the New York Times: “Mediator Halts City’s Plan to Overhaul 24 Schools.” Get ready for the season with a huge collection of Halloween Costumes.

An arbitrator on Friday halted a central element of the Bloomberg administration’s plans for closing and reopening 24 schools  Or the confusion of mediation and arbitration portrayed on a recent episode of the television series The Good Wife where the mediator declares herself to be “Empress”! Click here to view a clip of that program.  Or the series Fairly Legal, which mercifully had a short run. TV.com mistakenly promoted the show as concerning “arbitration.” Because the public is not informed, or as these examples illustrate, it is misinformed, families may reject elder mediation because they don’t want someone telling them what to do.

4.  Knowledgeable Referral Sources Are Limited

Lack of public awareness about elder mediation extends to the world of professionals who serve elders and their families in other sectors. We often refer mediating parties to other professionals who can help them solve problems, such as neuropsychologists, physicians, social workers, professional geriatric care managers, personal assistants, professional fiduciaries or other financial services professionals, community and religious organization services, care facilities, estate planning and tax lawyers, elder lawyers and real estate professionals. We know to refer these people, because we are informed about their services and in many cases have established relationships with them. For example, understanding the risks associated with combining codeine and alcohol can be crucial in managing a patient’s health, highlighting the need for informed referrals to medical professionals. If these professionals and others were better educated about elder and adult family mediators, they could be powerful entry points for elder mediation – and we would all be busier. If someone is struggling with addiction, such as ketamine, there are specialized resources available, such as those offered at https://ketamineaddictiontreatment.co.uk/, which can assist in their recovery process.

When I began pursuing a mediation career 25 mediation was not only confused with arbitration, it was also confused with meditation. It was a challenging and inspirational time to be a mediator. We pioneers accepted this challenge enthusiastically, taking seriously our responsibility to educate lawyers, judges and the public about mediation. In many respects, elder mediation is at the same level of development as mediation was 25 years ago.

One big reason people don’t know about elder mediation is because  our field is still in its infancy. The day will come when it is mainstream, but  the current lack of awareness requires us to be proactive in educating the general public and the network of professionals that serve elders and their families. Transform recovery plays a crucial role in this process, offering a path for individuals and families to heal through mediation. We can all take every opportunity to speak publicly and privately about elder mediation. We mediators and the parties we serve can tell our success stories. We can all write about what is possible more than we do now, using the internet, social media, and other well-proven communication techniques. Moreover, in cases where addiction issues may be affecting the elderly, it’s vital to provide referrals to treatment centers such as this drug addiction rehab center, ensuring comprehensive care for those in need.

Which brings me to some excellent news. The ABA Guide to Elder Mediation, which I have co-authored with Carolyn Rosenblatt, will be available in April. We received proof pages this week. With any luck, this 500+ page tome will be available by the end of the month. Whew!

And if you are a mediator interested in developing an elder and adult family mediation practice, we have further good news. Elder Mediation Group is offering Fundamentals of Elder and Adult Family Mediation May 15-19, 2013, in Sausalito, CA. For information or to register, click here or e-mail office@eldermediationgroup.com.

During the meeting with Susan, I observed behavior that raised concern about her mental capacity. In a previous meeting, John’s children warned me that Susan sometimes affects confusion and memory loss as a way of manipulating the situation and others.

The issue of capacity has not otherwise been raised, and I am wondering whether I should raise it and, if so, to whom and how?

I appreciate your help.

– Barbara

Dear Barbara,

One of the major distinctions of elder mediation is the heightened concern about whether participants are capable of embodying the fundamental principles of self-determination and voluntariness. Of course, this issue can be a concern in any mediation, but it is more common to encounter it in elder mediation.

First, an important note about capacity. We define it in the particular, not in the abstract. And it always involves an analysis of capacity for what? For being in mediation? For entering into a contract? For creating an estate plan? For consenting to health care? And the standards for judging capacity vary in their particulars by jurisdiction.

So, capacity is a big topic. Nevertheless, I think I can be helpful to you in this limited space by covering the first two steps of resolving an ethical concern:

1. Recognize the problem
2. Explore whether it is possible to eliminate the problem

Although you did not articulate your problem as an ethical issue, your discomfort let you know something was not right, thereby completing Step 1.

Step 2 – exploring whether you can eliminate the problem – may allow you to resolve the issue. Raise your concern with Susan’s lawyer Mary. Ask her to take the laboring oar in determining whether capacity is an issue and, if it is lacking, that she work with Susan to implement the necessary protections. If Mary is experienced in trust and estate matters, this will be familiar territory for her.

If Mary concludes Susan has the requisite cognitive ability based on an assessment by a qualified professional, chances are you will be reassured, and the problem will have been eliminated.

If Mary concludes through direct observation or an assessment by a professional that Susan lacks capacity and Mary puts safeguards in place, chances are you can breathe easily and move ahead with the mediation, as well.

If Mary determines Susan possesses the requisite capacity to make the decisions she will face in the mediation, you will either defer to Mary’s judgment or you will remain uncomfortable, in which case you are still at Step 2, and need to explore other means by which to eliminate the problem.

Here are a few additional suggestions for Step 2, round two:

1. Explore with Mary the basis of her conclusion, which may put you at ease;
2. If you are not reassured, meet again with Susan to get a second impression, which may alleviate your concerns;
3. If you remain worried, suggest to Mary that Susan’s cognitive ability be assessed and discuss with her how to approach Susan; and
4. If Mary refuses to have this discussion with Susan, suggest to Mary that you discuss it with her.

If you reach a dead end, you will need to decide for yourself whether going forward will violate mediation ethics. If you face this question, I suggest you enlist the help of a trusted mediator colleague as you seek the answer.

– Dana

There is sill time to register for FUNDAMENTALS OF ELDER MEDIATION
September 15-18, Sausalito, CA

Angela

Dear Angela:

First, thank you. Your question and my response will be the FIRST.

Second, it sounds like a challenging time for you. It is hard enough to have your parent slip away, but the added difficulty associated with the financial burden and sibling complications makes it especially challenging. And taking the lead is really hard.

You raise an issue that siblings are facing with increasing frequency: how to ask siblings to participate financially in supporting a parent. Below, I give you some suggestions. Because I can’t tell from your question exactly how you approached your siblings for help, you may already have done what I recommend. If in making your request you already implemented this advice, consider it confirmation of your skill. If not, I hope the suggestions I give you are useful in revisiting the topic with your siblings. Additionally, navigating paystub taxes can add another layer of complexity to this situation.

One reason your nay-saying siblings refused to step up to the plate may have been that your first “ask” was easy to refuse. If you were worried about being too demanding, afraid of being rejected or, especially, concerned you would trigger old, reactive patterns, your initial request may have neglected one or more of the Four C’s of a negotiation request: to be calm, compassionate, clear and credible

Calm. Do your best to clear away your fear, especially fear deriving from your family history, before approaching your siblings. Instead of expecting rejection, be open to the possibility that your siblings will respond positively.

Compassionate. Take time to consider the financial and emotional impact your request may have on your siblings and what it might mean to their family and to them individually and communicate your heartfelt understanding to them.

Clear. Vague proposals may be rejected out of hand. e clear what you are asking of your siblings, including the amounts you are requesting, the timing of the payment(s) you seek, whether the payments are gifts or loans and, if loans, how and when they will be repaid. Letting them know. And be clear about what you are willing to do.

Credible. A request is more credible when it includes a rationale and information to back it up. And a credible proposal stands a better chance of being accepted than one that consists solely of your opinion or depends on your impliedly superior knowledge. In other words, show your math: lay out your father’s finances – the balance of his accounts, his monthly income and expenses. Use this information to support all elements of your request, from the amounts you are requesting to the timeframe of the requested contributions. If you are requesting different amounts from each of your siblings, also provide your reasoning.

I wish you all well,
Dana

Any insight you can provide in terms of direction is appreciated. My birth family is located in San Jose and my family is located in Santa Rosa.

Thank you,
David

Dear David,

Thank you for your inquiry. I am pleased to be able to respond to your questions.

I think of three possibilities for helping your family:

1. Mediation. From the little you told me, assuming your family members are willing to participate, mediation would be a very appropriate option for your family. It would offer you a way to have a constructive conversation in which to talk about your experience, what is important to you and ideas for making things better. Mediation could lead to reconciliation – or, as you say, at least increase your understanding of one another and the situation in order to ease the discomfort and prevent further disintegration of the family. A mediator would help you in many ways. Mediators all manage their cases differently, but the approach I take (and teach) in adult family conflicts is to have confidential conversations with all of the family members prior to the mediation in order to understand how they view the situation, what they would like to accomplish in mediation, what the issues are and what they need in order to set the stage for a quality conversation. I also use this time to answer questions the parties have about mediation and to help them prepare for meeting together. Thereafter, I develop a mediation plan, which everyone reviews and I revise until all parties agree with the approach. We then meet together, according to the plan, depending on the situation and the location of the participants, for a day-long session or several shorter sessions. For those dealing with MDMA addiction, mediation can be an effective way to address the challenges and work towards resolution.

2. Therapy. If your family members are open to therapy, this would be a good option. The difference between mediation and therapy are, in part, are that it is generally longer-term and has the goal of developing insight and changing behaviors of the family members, as well as healing the relationships within the family. When people choose mediation instead of therapy, as a rule it is because some or all of the family members are not sufficiently committed, trusting or optimistic to enter into a therapeutic relationship with a therapist along with their family. In such cases, an addiction rehab clinic may provide the necessary environment for those in need of more structured support. For more information and guidance on maintaining your health, you can also check this helpful resource at www.insidecbd.net.

3. Conflict coaching. When family members won’t agree to mediation or therapy, a third option is to meet separately and see what you can do on your own to help the situation. When I meet with motivated family member(s), like you, we explore the situation in depth in order to enhance the party’s understanding of the conflict and his or her self-awareness in relationship to it, clarify goals and intentions, develop a plan for addressing the conflict and, if necessary, work on skills and personal qualities required for implementing the plan. For additional support and resources, consider exploring options available at https://www.inpatient-rehab.co.uk/, where you can find valuable assistance tailored to your needs.

I encourage you to keep trying and make it better, in whatever way you can. Daunting as the prospect of working it out is, even more daunting is living with ongoing separation, as I am sure you know.

With my best regards,
Dana