The mechanics of elder mediation are not much different than other types of mediation, except that both “sides” in these disputes are members of the same family. Parentgiving.com got an inside perspective from elder mediator William Van Twisk of Brunswick, Maine.
Parentgiving: In your experience, what are the most common issues or conflict points that require elder mediation?
William Van Twisk: Right away, it’s important to think of the services of mediators as helpful for more than resolving a present dispute. Many seniors are looking to “put their affairs in order” and their families appreciate that and want to help the best way to do that. Mediators help families get through the discomfort that accompanies the sometimes-difficult conversations needed to create sound plans going forward. Ultimately, all family members report that having these in place can be a source of great peace of mind. The lives of families are built on continually changing roles, relative levels of power and leadership responsibilities and adjusting to a time where children feel the need to “parent their parents” can be both physically and emotionally daunting. Mediation conferences take many directions, responding to the particular needs of the clients and are conducted so that each person can feel honored and respected and can contribute as they wish. Often the participants are very surprised and excited about what they are able to accomplish in this setting.
“Mediators assist families to create the framework and plans to accomplish their goals.”
Mediation can facilitate conversations between an elder party and one’s family circle in two main areas: First is in making plans and decisions to better accommodate the inevitable process of growing old—that is, adjusting to our gradual or sudden loss of the ability to independently carry out the usual functions of life. In this vein, children may wish to discuss with a parent important topics like guardianship, where another person will have legal authority to make health and welfare decisions (medical, consents, place of residence), or conservatorship, where a person is appointed to control the assets and finances. Less formal arrangements might include appointment of someone with specific powers of attorney, or even an informal agreement for a child or other person to be “on call” for help on a less-frequent basis. There are many levels and methods of having loved ones or outside services provide assistance or to have legal authority, and this can be an excellent discussion topic to be sure that children, spouses and other caregivers are all onboard and have a chance to be heard.
The second broad area has to do with financial or estate planning, and might involve discussions about inheritances, where the elder can be clear about their intentions and prevent “bad surprises” when heirs learn about the terms of a will—I have a lengthy background in real estate and know how divisive that topic can be! Today, elders with significant assets often incorporate trust instruments in their financial or end-of-life plans, and involving the trust beneficiaries in this process is key.
To personalize this, consider how blended families, second marriages and other typical complications present challenges for elders like “Barbara.” Barbara needs to revise her will and make other plans now that her husband has died and her three children are wondering what might happen in her remaining years. But her children are so different and they’ve never been close to each other. One’s unmarried, financially successful, lives far away and rarely visits. Another wants Barbara to come and live with her family so the grandchildren can get to know their grandmother better. And the third is newly married and her husband just lost his job. They wish Barbara would move closer so she could take care of their new baby and save them childcare cost. Barbara would like to spend the bulk of each year in a warmer climate. This family has a lot to talk about.
The question of residency affects both these discussion topics. We’re living longer, have options for moving to a child’s home, face the high cost of assisted-living facilities, and wonder if we can shift assets around somehow so as to be able to qualify for certain services or living situations. Mediators don’t give legal advice, write trust documents, interpret regulations or provide counseling—rather these services come from other professionals, but we assist families to create the framework and plans to accomplish their goals. Often those goals include simply having one’s viewpoints acknowledged and respected, and maintaining healthy relationships.
Parentgiving: Can you describe the circumstances regarding a difficult situation that you were asked to mediate?
Van Twisk: In Maine, where I practice, disputes arising from matters submitted to the Probate Courts, like petitions for guardianship or inheritance disputes, are not required to first be submitted to mediation, like many other civil matters here. But that doesn’t mean the Probate Judges don’t wish they would! I mediated a case where we joined together a probate and a civil case involving “Beth” and her family. Active and feisty on the surface, Beth was living in a nursing home due to a chronic health condition. Sometimes feeling that she was too much managed by her husband, “Fred,” she wished to take back some control of her care and financial affairs previously given to him by power of attorney (POA). Meanwhile Fred, truly a caring person, was seeking greater authority as her full guardian and conservator. Another party to the case was the nursing home, who had not acknowledged her legal revocation of the POA, but was happy to abide by whatever the case outcome might be—they felt stuck in the middle and were hopeful the family members could find agreement.
“My style or model of practice is called Transformative Mediation, where relationships are all-important and I focus on helping clients regain a healthy sense of empowerment and recognition.”
The dynamics of this case revolved around the conflict produced by the caring husband who wished to care for his wife in a certain way, and the woman’s four daughters, with whom she was very close and were not the children of her present husband. One daughter “represented” the children and felt that another home closer to the daughters was more appropriate; she often felt that Fred placed unreasonable limits on visitation with their mother and did not share important medical information. But Fred had been talking to home staff and doing other research and felt that the present facility had better services, Beth’s friendships with other residents were important and a move would be harmful.
As often happens, the conversation here evolved in a way that attended to most important issues for each party. The daughter, while not a party to the lawsuits, became an important participant in the mediation and played a large part in the resolution; in the course of several hours, the tone turned from hateful to loving. The legal matters were completely resolved as well and the process also provided a template for how these parties, Beth, Fred and her daughters can have healthy communications and work out modifications to all the ways they interact and show their love for Beth. As a mediator, I felt that if we allowed time so all could explore the reasons for their past conflicts, it might show that at the core, all parties had the best of intentions. I congratulated them all for achieving that. Important also is that the three attorneys involved were expert in elder matters and so allowed the parties full rein to explore all the human, relational and emotional aspects to their conflicts.
This shows how the “intake” process, where we determine just who should be a party to the mediation, is very important. It can be hard to set up this way, but often it is appropriate to first have some or all of the children of the elder meet in mediation, then a family mediation with all parties.
Parentgiving: What are the difficulties a mediator may encounter in the process?
Van Twisk: When we’re able to convene a conference with the appropriate parties present, things usually go well—it’s amazing how difficult and uncommon it is for families to have a joint “family meeting” these days, and just the coming together is so positive. Often mediators feel a conference is difficult or challenging when parties seem to be at an impasse; in the past, the mediator might have stepped in with a suggestion or even strongly worded direction, but today we’re more concerned that clients are more a part of the problem-solving process; once my clients feel this, they tend to seize the opportunity to direct the flow in ways that work for them. This usually means that the impasses rarely occur. My style or model of practice is called Transformative Mediation, where relationships are all-important and I focus on helping clients regain a healthy sense of empowerment and recognition; because the flow of my mediations are client-centered rather than focused on the authority of the mediator, I think this tends to remove some stumbling blocks we used to see. This means, for instance that maybe the mediation did not produce any agreements or resolutions at all, but everyone still thought it was successful.
Parentgiving: Is the agreement reached in mediation legally binding? Do the parties come up with a written agreement?
Van Twisk: Written agreements are contracts, generally defined as an agreement reduced to writing and signed by all parties. As such, it’s legally binding, but the issue rarely comes up. The big benefit of mediated agreements is that, since the terms were created by the parties themselves, everyone has “bought in” and there will be better follow-through and compliance.
I often assist parties in preparing mediation agreements, even when they are not represented by attorneys. But there are other ways that are fine, too. We might prepare a draft agreement for review by attorneys or provide details on terms and have the agreement prepared by an attorney. When discussing terms, I always take ample time to make sure they’re exactly what’s been mutually agreed on, and tweaking the details can be very reassuring as well. Yes, it’s always best to put it in writing and not assume we’ll remember later on what our intent was; I often recommend a provision that allows regular review and adjustment of the agreement—after all, we’re talking about human circumstances that will surely change.
Parentgiving: What is the best way of going about finding a mediator?
Van Twisk: As with any service provider, a personal referral from a trusted source is always good—but many have no experience here. You might ask a general practice or elder attorney. Internet resources can provide some help, but as yet, there is no good nationwide search engine for finding and sorting mediation service providers. I’d suggest that someone who maintains membership on a state mediators association is a good lead; also try a simple search engine entry of “mediator (your town/city) (state)” where you would enter the proposed mediation place. You would like to end up with two or three mediators to speak to personally or on the phone, and a mediator should be happy to consult with you about your needs for 10 to 15 minutes at no charge. The central question is always, “Why are you the best mediator for our needs”? Mediator costs, practice styles, availability and experience in your subject area are all things to discuss. Just don’t forget to trust your intuitions also.
Parentgiving: How can families be reasonably sure about the competence of a mediator? Are there any qualifications or certifications one should ask for?
Van Twisk: In most of the US, the practice of mediation is largely unregulated by the state, although there are minimum requirements to work in certain established mediation programs. Mediators are credentialed by virtue of their level of training, experience, prominence in the field and maybe acceptance to certain mediation rosters or panels, such as the several court mediation rosters I serve on. It may sound overly simplistic, but I think you’ll be fine to go with a mediator who seems good to you. This is not a business where we’re in it for a little extra money—mediators are serious about their work and seek to continually perfect their craft; most obtain more annual continuing education hours than many other professionals. I also promise my clients— satisfaction with a money-back guarantee! I admit to a bias towards mediators who are not also practicing lawyers, especially in this type of work. Mediation can work best when the clients can talk about other than legal concepts and rights. The hard part for families is not finding someone who can amend a will, create family trust documents or Powers of Attorney or defend your rights to making your own decisions—but deciding on the terms of these planning elements. “Who will own and manage the family vacation home when I am gone? Will you support me in my wish to be independent for as long as possible, and in my health care directives?” “We’re worried about you, Mom, and really think you should consider assisted living.”
I find it helpful to be able to focus on these important discussions, unencumbered with thoughts of legalities. Certainly not everyone agrees, and attorneys often feel that their legal credentials are important as mediators. But I often work collaboratively with legal counsel for one or several of the parties. Hard as this might seem, sometimes the interests of parents and children can be adverse, and it can be hard for an attorney working as an attorney to make it clear that the client is the parent(s) and not the whole family.
In the final analysis, some might say that the hard part is getting everyone to agree to talk and finding a date and time to do so, not in finding a good mediator. This is changing as we become more aware of the benefits of mediation, the wide availability and reasonable costs. And hearing about a few success stories helps, too!
William Van Twisk owns Will Van Mediations in Brunswick, Maine; he mediates in the courts and privately, with specialties in areas of elder/estates, real estate/land use/construction, and condo/homeowners associations. He invites questions and inquiries about mediation and you’ll find his contact info at www.maine-mediator.com.
Read part 1 of the series