Previously, I discussed how mediators help families settle disputes concerning estates or trusts and end of life issues. This article focuses on how mediation can help keep families from going through expensive and often destructive litigation. Family meetings can be a useful tool for finding common ground when there are disputes over care of elders, and other end of life issues. In August 2016, the book Mediation for Estate Planners: Managing Family Conflict was released by the American Bar Association. I wrote the chapter “A Mediator’s Perspective: Situations Mediators May Face”. This blog series features some of the salient points in this book.
Difficult Issues Families Face as Population Ages
According to a Gallup survey in 2016, only 44 percent of all American adults have a legal will or other estate planning documents. While these documents don’t guarantee that there will be no family conflicts, they serve as a foundation for carrying out the wishes and preferences of your loved ones. For instance, a spouse with an ill partner may disagree with his or her adult children about the best decision to make on behalf of their beloved mate concerning life support. Bioethics mediation is a specific subfield of mediation in which a mediator will assist in resolving disputes between family members during end of life care decisions. A common situation which arises in these cases is that one person is not ready to let their loved one move on and make the decision that would allow them to pass in a peaceful manner, whereas the person holding the power of attorney is attempting to fulfill the wishes of their loved one. It’s difficult for both family members. A mediator can help them have this difficult conversation.
Quality of life is another common concern. When mental or physical capabilities decrease there can be tension between the elder and their offspring about quality care and needed supports to remain in the home. There are often conflicts between the out-of-town siblings and those who are geographically near to Mom or Dad. All of these issues have the potential to create conflict between family members, depending on how involved those family members are in ensuring quality care. Siblings may argue about how to care for a parent, or spouses may argue with children or each other about major decisions that have to be made. Mediation and family meetings can become key to maintaining the peace and coming together to make the best decisions possible. They can also avoid messy protracted estate litigation or will contests.
Family Meetings: How a Neutral Can Help
Elder mediation has grown in the past two decades given the increasing number of issues with people living longer lives and more adult children find themselves caring for or making decisions on behalf of their parents. As the AARP reported: “As parents live longer, sibling relationships are likely to get tested over and over… Mom and Dad are typically less interested in what those decisions are than that their kids get along, maintain elder care experts. Out of fear of triggering sibling strife or displeasure from their children, they may not level with family members.”
A family meeting focused on the issues allows the parents to express their wishes whether it be for end of life care and medical decisions or distribution of their estate. The neutral is brought in to facilitate direct communication. The mere presence of an outside third party changes the family dynamics in the room. These meetings also can allow for the parents to hear their children’s concerns and possibly accommodate them in any estate planning documents. Such family meetings wouldn’t necessarily have to be lengthy proceedings, but it is important to allow honest and clear dialogue to occur between participants, and to ensure that all parties feel their concerns are heard and addressed. I was recently hired to facilitate a family dialogue between parents and their three adult children and spouses about the proposed distribution of the family homestead. The family members were able to brainstorm alternative solutions, thus averting possible litigation after the parents were gone.
My goal is to help families resolve these issues with a minimum of pain and tears and less money than a full blown contested hearing or trial. Family mediation is a private, nonbinding, and confidential meeting between the parties involved. Participation is voluntary.
Mediation may also help in addressing the emotional dilemmas surrounding the dispute. Mediation allows for the acknowledgment of turbulent feelings with the goal of getting all parties to recognize and address the emotional issues that led to the disagreement and then reach a resolution. Families are far more likely to come out of mediation with relationships intact and a palatable resolution in place than they are to emerge from litigation with the same things.
Ellen F. Kandell is a certified professional mediator and attorney with over 30 years of public and private sector experience. Ellen is certified by the International Mediation Institute. She is past chair of her local bar association’s ADR section. She provides mediation, group facilitation and training to diverse, national clients. Get in touch with her via email, LinkedIn, Twitter, or give her a call at 301-588-5390.