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Facilitative Mediation – A Model for Resolution of Eldercare and Family Disputes

The idea that civil cases can effectively be resolved through mediation is well-known. Since the early 1980’s courts and bar associations have promoted the concept of “dispute resolution,” resulting in the incorporation of rules into statutes and trial procedure. The idea that eldercare family disputes can be mediated is a new one. In 2006, fifty mediators, including the author, were trained by Fort Wayne Attorney-Mediator Janet Mitchell to meet the demand for such services in Indiana. A national network of eldercare mediators co-founded by Mitchell has been launched at www.EldercareMediators.com with 30 mediators in 20 states.

Eldercare mediation trains exclusively in the use of the facilitative and transformative models of mediation. This article will explain the facilitative model for mediating family disputes in contrast to the shuttle model used in civil cases. It will identify advantages of the facilitative model, as well as educate attorneys about this model to alleviate concerns that invariably arise when using a new mediation technique. Examples of conflicts that are amenable to the facilitative model will be explored and discussed to provide a clearer picture of the benefits of this model.

In Indiana, civil mediators typically use the shuttle model. In shuttle mediation, after an initial introductory session where all participants and lawyers may be present and provide a synopsis of their respective positions, the parties are then moved to separate rooms. The civil mediator facilitates the exchange of offers and demands between the rooms. The goal is that over a period of several interchanges, the mediator will know the highest and lowest offers that will be accepted and thus determine if consensus can be reached. This model is the standard for cases involving an exchange of money offers and has been very effective in that arena as a settlement negotiation technique.

Eldercare mediation arises because of the acute need for conflict resolution focusing on the needs of the elderly and their families. Using a facilitative model rather than a shuttle model, families have the opportunity to clarify the concerns that are the most important to them, share resources, consider alternatives, and find effective, satisfying and long-lasting solutions. Eldercare mediators facilitate resolution of family disputes surrounding topics relating to the aging of loved ones. Issues which may be mediated include: Should Mom/Dad still be driving?; Who should have power of attorney for Mom/Dad?; Can we avoid guardianship for Mom/Dad and if not who will be guardian?; Where will Mom/Dad live?; Who will care for Mom/Dad?; How will care for Mom/Dad be paid? In addition, will and trust disputes are appropriate for resolution by the facilitative model because the same emotionally-charged dynamics are present in such disputes, even though the ultimate exchange may be monetary. For a complete topic list of family dispute mediated with the facilitative model, see www.EldercareMediators.com.

With the facilitative approach all stakeholders meet together in sessions where the issues are clearly defined. The mediator assists family members in determining who needs to participate in the mediation process. Each session ends with an understanding of the additional information that is needed before final plans and agreements can be reached.

The aging loved one is urged to participate to the extent possible with participation limited if need be due to fatigue and health issues. Via active participation by all members, issues are effectively addressed and possible resolutions discussed. Sessions are typically scheduled for two hours. The sessions are confidential and begin with an introduction to the process. Each participant is asked to identify the issues that he/she would like to have addressed, regardless of whether any agreement can be reached on the topic. The initial session provides the participants with a clearer understanding of the process, and provides the mediator with information regarding whether the process will work for those particular participants and issues. The family members set up additional two-hour sessions as needed.

The shuttle model of mediating family and eldercare disputes is not an effective means of arriving at consensus regarding the complex issues involved. Given that most family and elder disputes arise in highly emotional situations, there is a tendency for attorneys and the feuding parties to believe that the shuttle model would work better and save emotional energy. But such is not the case. The facilitative approach comes from a different angle and starts with the premise that the parties hold the key to a resolution. Since family members know more about their concerns than a judge or even their lawyers, the parties work together to reach agreements that are practical, fair and in the best interest of loved ones. This model is particularly effective because, outside of will and trust disputes, money is often secondary to the central caretaking theme. Rather, relationships, behaviors, and family traditions are central. For that reason, all interested parties are expected to be in the same room and actively participate in all discussions. In instances of long-distance, family members may participate by conferencing or computer linkage.

Elder attorneys and attorney-mediators comfortable with the shuttle model may at first feel “out of their league” in a facilitative mediation. Differences include the more active role attorneys play in shuttle mediation, such as alerting the mediator to the issues for resolution and making recommendations regarding offers and acceptance. Rather, in facilitative mediation, these roles are minimized. Instead, the stakeholders are given free reign to sit down together in charting the course of the discussion and the agenda, including topics any participant wants to address. The mediator guides the participants, and the attorney’s role is to provide ongoing advice, assistance with potential solutions, and the drafting of formal agreements based on the mediator’s confidential notes.

The facilitative model has many advantages, especially when it comes to mediating family disputes. Because money is often not the issue, having a facilitative discussion among family members on emotionally charged matters results in agreements that families can live with. The family members take an “ownership” interest (instead of succumbing to court order or a quickly-adopted mediated decision made in caucus); multiple short sessions can be set up, enabling family members to be fully prepared by the time of the next session (compared to half or all-day shuttle mediation sessions); the family members work more effectively together as a family on an ongoing basis; and both financial and emotional costs are less. Participants will not be asked to sign any legal documents until each has the opportunity to obtain legal advice, and an attorney has prepared a draft agreement. Mediation is voluntary – any participant may stop mediation at any time. Family members are better able to address the concerns of aging because they are focused on providing the highest quality of life for their loved ones. The mediated agreement lasts longer because the family worked together to create it, and family members are better able than a judge to anticipate ongoing changes as they arise in the future. Facilitative eldercare mediation results in better family relationships and a lower likelihood of having to return to court. The mediated agreement fits with the family better because it is “custom-made” and covers whatever topics family members need to consider.

Facilitative Eldercare Mediation has many benefits:

it has a high success rate;
it permits the elderly to be involved to the greatest extent possible;
it gives power to the elderly who may believe that life choices are out of their control;
it helps families heal so the elderly no longer see their children fighting;
it is goal-directed, thus helping family members focus on future needs in arriving at sound decisions; and
it helps attorneys fulfill their ethical duty to provide effective alternatives to litigation.

Guardianships, estate matters, living arrangements, medical preferences, and driving privileges are typical of the types of disputes which may successfully be resolved through family and eldercare mediation. One such family dispute recently mediated by the author arose between a maternal grandmother, grandfather and daughter regarding the guardianship of the daughter’s minor son. The son’s father was in jail, and all involved wanted the baby to be in a stable environment, regardless of the daughter’s circumstances. A second family dispute involved two brothers, where one had taken money and other assets from their mother. If not spent, these assets would have been divided between them at the time of estate division. The second brother expressed concern about whether there would be repayment to the estate for the amounts used. A third conflict involved a hospitalized man who sought to bring his children together for common ground after he had made inappropriate remarks resulting in distrust from his children. And another family expressed concerns about the mother’s depression and her use of time on a daily basis. Effective settlements were reached in these cases that would have been very difficult to achieve using shuttle mediation. The issues were too complex, the emotions too high, and the goals too far-reaching.

In conclusion, to draw on a popular analogy, family members already wear the ruby red slippers that could get them to Oz at any time. With facilitative mediation, they are able to click their heels together to arrive at decisions that are right, just, in keeping with their family values, as well as being in the best interest of their aging loved ones. This helps to preserve family relationships, improve the quality of life for all family members, and helps the family focus on the best interests of their aging parents.

Provided by Mary J. Hoeller, a sole practitioner in Indianapolis. She is a registered nurse since 1974 and a 1982 graduate of the University of Pittsburgh School of Law. She practices law in the area of civil litigation, estate planning, and probate. She is a trained family and eldercare mediator.