What do family care giving, adult guardianship and probate disputes have in common? All can involve the elderly and their family members; all can cause stress and conflict that lead to litigation that is expensive as well as contentious. The results can be devastating not only financially but emotionally on the participants and their families. Resolution to such matters in court can prompt animosity that continues into future generations.
There is another option. Elder Mediation offers the opportunity for creative problem-solving and the possibility of avoiding costly, time-consuming disagreements that can tear a family apart. No doubt legal, financial and medical issues require professional expertise, but the process of arriving at a decision through mediation can have outcomes that promote family healing rather than family estrangement.
Adult guardianship cases are becoming more numerous as life spans increase. Instead of being a divorced couple fighting over custody of their children, family members are waging custody battles over guardianship of their parents. Legal and financial questions, decision-making and control issues are often exacerbated by past family dynamics. In the state of North Carolina the Clerk of Superior Court may order mandatory mediation of an adult guardianship case on his/her own initiative or if a party or other interested person enters a motion requesting mediation. Mandatory mediation of some or all of the issues regarding an allegedly incapacitated adult may be appropriate if specified issues such as who should be appointed guardian are being contested. The advantages of utilizing this process include the following:
- The parties, not the court, are in control.
- The process is confidential (except for certain specific allegations.)
- Mediation is less expensive and faster than court proceedings.
- Solutions can be more creative.
Emotional factors are prevalent when dealing with estate and trust matters. According to Lela Love, author of Mediation of Probate Matters: Leaving a Valuable Legacy, litigation can be costly and “can alienate family members from each other and polarize families into warring camps, sometimes for generations.” In dealing with estate matters, family history and dynamics can influence actions, motives and agendas of those involved. A skilled Elder Mediator can help focus on the future in a positive way and assist family members in setting up a communication plan for further interaction.
Pressures and conflict with family care giving can erupt into disputes with the elder who requires care as well as with other members of the family. Who is/is not doing his/her part and what the care giver is/is not doing can lead to questions as to how the elder’s money is being spent. The health and safety of the older family member might be put at risk and unnecessary court fights over guardianship might ensue. Mediation, however, offers another possible outcome. Speaking privately,in a non-adversarial setting with a trained neutral facilitating the discussion, participants might arrive at a solution with which they all can live. As much as possible, depending on mental and physical capacity, the elder should participate in an effort to maintain his/her independence and dignity.
Elder Mediation is, potentially, emotionally charged and usually involves multiple parties. Patience, compassion and a sensitivity to the aging process itself are requisite skills that a mediator must possess. Elder Mediation, at its best, offers a unique opportunity to resolve differences, preserve relationships and strengthen family foundations.