I have been retained to conduct mediation with seniors “John” and “Susan” – and John’s adult children – to negotiate a marital settlement agreement between John and Susan and an estate plan for each of them in the context of the couple’s divorce. Susan and John are each represented by lawyers. In preparation for the mediation, as is my practice, I spoke with the lawyers and, thereafter, met separately with John and Susan and with John’s children.

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

Our father is in assisted living and his expenses exceed his income every month and we have exhausted his assets. I have 3 siblings. I asked them if they would help out, at least until his VA pension comes through. One said yes, one said no, and the third is hedging saying he’d rather not because it would “pollute” his relationship with his father. How can I respond to this?

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.

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. Be 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

I’m wondering if you can suggest a direction for a problem I have. I find myself entangled in a multi-layer dispute with my birth family. I am wondering what you think is the best place to take such issues. Does it make sense to follow a mediation path or is there another route to take? I think the goal is to have a place where we can come together and be heard and hopefully reconcile our differences or, if that’s not possible, create a basis to understand each other and understand how to relate to each other so that we don’t continue to create harm in our relationship.

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.

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.

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.

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

It is with great pleasure that I launch this blog, in which I will address readers’ tough questions about elder mediation and adult family conflict. In the twice-monthly posts, I will be answering burning questions submitted by readers in two areas:

• Questions about mediation from mediators, lawyers and mediation parties and
• Questions about adult family conflicts from, well, anyone who has a family!

I look forward to hearing from old friends and “important strangers,” as cultural anthropologist and teacher Angeles Arrien puts it, as we explore the opportunities and the challenges of this developing field of elder mediation. Here’s to learning and to having some fun with it!

I will also bring you news of elder mediation articles and upcoming events. For starters, I am happy to announce these upcoming events:

UPCOMING MEDIATION TRAINING

• Fundamentals of Elder Mediation: A Workshop for Experienced Mediators, September 15-18, 2011, Sausalito, CA.
• Elder Mediation Practice Groups – a series of four monthly two-hour sessions, September through December 2011. One group will meet by teleconference and the second will meet in-person in Sausalito, CA. Enrollment is limited to 10 participants in each group.
• Self-Care Retreat for Conflict Professionals – explore how to care about the participants and for ourselves, as we examine the hazards of working in high-conflict disputes and approaches for managing ourselves as we face them.

UPCOMING ELDER MEDIATION PRESENTATIONS

• Working with Professionals, Agencies and Resource Persons in Elder Mediation - Webinar presentation sponsored by the Association of Conflict Resolution Elder Mediation Section. August 24, 2011 — 12:00 pm – 1:00 pm.
• Mediating with Self-Represented Litigants - Dana Curtis will join The Hon. Barry Goode and David Miller for this program sponsored by the Alameda County Bar Association ADR Section. August 25, 2011 — 12:00 – 1:30 pm.
• A Matter of Trust: Mediating the Inheritance Dispute -  Sponsored by the Alameda County Bar Association ADR Section (with Judy Barber, Fred Hertz and Elizabeth Krivatsy). September 20, 2011 — 5:00 – 6:30 pm. 
  
• Pre-emptive Mediation in Trust and Estate Matters Dana Curtis will join Judy Barber, Fred Hertz and Elizabeth Krivatsy for this program sponsored by the Alameda County Bar Association ADR and ADR and Trust and Probate Sections. September 22, 2011, Oakland, CA. Information will be available on the Alameda County Bar Association website in the near future.

Finally, as many of you know, I have been busily working on two elder mediation publications:
• Guide to Elder Mediation, to be published by the American Bar Association later this year (the first draft is near completion!) and
• Mediation and Geriatric Care Management, Chapter 22 in Cathy Jo Cress’ Handbook of Geriatric Care Management (Third Edition 2011), which became available a few weeks ago.