Elder and Adult Care Mediation:
The New Horizon in Family Practice
By Barbara Sunderland Manousso, Ph.D., M.P.H.
With the population aging at an unprecedented rate, families are more frequently encountering
strained situations about how to best care for a loved one who no longer is able to
drive, live alone, requires assistance with daily living, or requires a new level of medical
care. Even in the best of families, communication can shut down or never open up to
quality decision making.
“My brother has been handling mom’s money the past two years, but my sisters
and I think that he is using mom’s money for his benefit. How do we find out? Can you help us?”
“My father is 92 and still wants to drive. He can hardly see over the wheel. Every
time my siblings and I bring up the matter, dad screams that it is none of our
business. However, it will be our business if he gets killed or he kills someone else
with his car. What can we do?”
“My mom needs assisted living, but won’t leave her house. How can we convince
her?”
“My parent is in a nursing home and isn’t getting medications on time and has
developed new health issues. The administrator told me that I’m crazy. I want to
sue them. Can you help?”
These are typical calls to my elder care mediation practice. These family dramas need
immediate resolution, not a lawsuit that could possibly take years. Mediation is an
opportunity to provide families guidance and timely assistance in having a quality conversation
that can address, negotiate, and resolve issues related to aging and family communication.
What is Mediation?
Mediation has been recognized in Texas and nationally for over twenty years. In the past
few years, most cases that go to family and probate courts are requested by the judge to
be mediated first. Mediation is an informal, confidential process held in a private setting
in which a neutral third party, a mediator, helps people to better understand their individual
interests and needs. An experienced, certified mediator can empower families to
recognize and implement workable solutions
to their problem(s).
Mediation is different than other alternative
dispute resolution processes in the
following ways. The basic idea behind
mediation is that a dispute is resolved
through an agreement among the parties,
instead of a resolution mandated by a
judge or negotiated by attorneys. First of
all, the parties establish their own outcome,
so the result fits their cultural
expectations, needs, and family nuances. It
provides an opportunity for a win-win
outcome: There doesn’t need to be a winner
and a loser. Negotiation involves a
third party that physically separates the
contending parties and shuttles ideas
between them. Arbitration uses one or
more third party neutrals that hear the
facts and make a decision on how to
resolve the conflict for the parties, like a
judge might. Litigation is far more expensive
and time consuming than mediation
and involves a judge who makes the final
decisions for the parties with the aid of
attorneys representing the involved
parties.
In mediation, whether it is voluntary or
court ordered, the parties might, or might
not, be represented by attorneys. Usually,
parties attend mediation without an attorney,
if they even have hired an attorney.
Then, if an attorney attends the mediation,
their role is of advisor, not as a direct participant
to the conversation. Mediation is a
process for the parties to talk to each other
and to make decisions that will work for
them. The mediation is confidential in
either case and the mediator does not
impose or make decisions for the parties
or offer legal advice. Using mediation as a
means of discovery is forbidden.
The mediation process has several
advantages. A main advantage is that the
parties retain control over the decision(s)
they choose to agree to in writing. Also,
results are generally win-win because outcomes
fit the needs and interests of the
opposing individuals or family. Because
the outcomes also reflect the party’s choices
and priorities, in turn, there is a higher
level of compliance with the written agreement
than with court judgments.
Why is Elder Care Mediation Different
from Other Family Mediations?
First of all, in elder care mediation, the
issue involves the care, safety, and comfort
of someone over 50, although usually
much older. End of life issues are not hidden.
There have been cases that the “senior”
was under 50 years old, but impaired
by a stroke, heart problems, or early
dementia.
Second, the case usually is initiated by
the children of the senior. The scenario is
that the kids see a downward spiral in
their family’s communication, or new
communication skills need to be established.
End of life decisions are uncharted
territory for most families.
Third, the mediation might not take
place in a business office. It is not uncommon
for elder care mediators to convene
the mediation in a long term care facility
or the family living room. Some elder care
mediations are held at the family dinner
table with favorite foods on hand. Sometimes
the elder might be in bed clothes.
Fourth, flexibility is a key to a successful
mediation. The children might be in
different parts of the country, so video
cams, conference calls, and email might be
tools for communication during the mediation.
Mediations can also be held in the
evening and on weekends to accommodate
family schedules and to lessen the burden
on parties.
And, fifth, but my no means conclusive,
elder care mediation’s goal in finding
resolution embraces strengthening family
communication, not pitting one family
member against the other.
Since elder care mediation involves
working through the established patterns
and dynamics of a family, the mediator
eases communication among family members
for whom the elder-care dispute may
reopen decades of old wounds and, often,
dysfunctional communication. All family
members have roles, postures, and personal
issues that have developed over lifetimes.
A qualified mediator helps to bring
out the best in everyone. Sometimes an
apology may be all that is needed for resolution.
Forgiveness, complemented with
new ways of listening and understanding,
may be the fruits of the mediation.
In elder care mediation, the elder is
strongly encouraged to participate. Their
opinions, needs, and interests are heard
directly. The children don’t talk about
their parent; they learn to communicate
with their parent.
Pre-conferences for guardianship are
also included under elder and adult mediation.
Mediation allows a ward or potential
ward to possibly participate in
arrangements that allows for maximizing
independence or as an alternative to
guardianship.
The cost of mediation over litigation is
also convenient in dollars, as well as in
time. Mediations can be scheduled within
in hours or days. Court cases take weeks,
months, or, unfortunately, sometimes
years. Sometimes, the elder person doesn’t
have time on their side, so the immediate
implementation of mediation is important.
Every mediator has their own price
structure, but, on average, the cost is
between $300 to $500 dollars per hour.
Many elder care mediations are multiparty
and require facilitation and negotiation
before the actual mediation. A spouse,
children’s spouses, grandchildren, neighbors,
friends, care givers, physicians, nursing
home administrators, and tax consultants
might also be in attendance or need
to be included somewhere in the process.
In general, the cost would be a fraction of
a legal battle tied up in litigation. Costs are
usually under $2,000. Some employee
assistance programs (EAP) share or cover
the costs.
Finding a Mediator
Since elder care mediation is relatively new
as a genre, there is a small national pool of
qualified mediators well versed in aging
issues, but the field is growing steadily.
Family mediators generally have been
those who have been working with Children’s
Protective Services and handling
divorces. However, adult and elder care
mediation needs a different orientation
with depth and scope into family issues
with community senior resources.
An elder care mediator should have
completed the state’s 40 hours certification
course in basic mediation, a 24 hours
course in family mediation, and a 24 hours
course in elder care mediation. In addition
to this core training, the mediator should
have practice hours in mediation, in general,
and involvement in professional
organizations with advanced mediation
training in guardianship and elder issues.
Some Texas courts, since 2007, will only
appoint elder and adult mediators who are
Nationally Registered Guardians. Pursuant
to Texas Government Code sections
111.002 and 111.042c, the Court adopted the
rules governing the certification of
guardians. Even if the mediator does not
act as a guardian, through the certification
process, the court is assured that the mediator
is familiar with aging and guardianship
issues.
Unfortunately, anyone can hang out a
shingle and hold themselves out as a
mediator, since there is no formal licensing.
A lawyer is not automatically a mediator.
Mediation is a profession in its own
right, so a lawyer would need certification
and mediation training in addition to law
school, unless the certification hours were
earned in the course of their legal studies.
Therefore, as a precaution, a mediator
should be selected from a rooster that only
uses well trained and professional mediators.
Ask questions. Review resumes.
Elder care mediation training could
also provide paralegals with valuable
insight and resources to complement their
profession.
Barbara Sunderland Manousso is the pastpresident
of the Association of Conflict Resolution
Houston chapter. She has been actively
involved in elder care as a popular speaker
at the international Association of Conflict
Resolution. In practice since 1993,
Manousso serves on a variety of federal,
national, and local mediation panels and
numerous community boards. In 2008,
Texas Governor Rick Perry appointed her to
the statewide Nursing Facility Administrative
Advisory Committee for a term until
2013. She has accrued over 2,000 hours in
advanced mediation and alternative dispute
resolution training and practice. She is a
member of the Texas Bar Association – ADR
Section, Texas Association of Mediators,
New England Chapter for the Association of
Conflict Resolution, the Labor Employment
Relations Association, and a director of the
Judge Evans Center for Mediation at South
Texas College of Law. She is a National Registered
Guardian. Her degrees include a baccalaureate
from Brown University in Rhode
Island, Master of Public Health, from the
University of Texas School of Public Health
in Houston, and doctoral studies at Nova
Southeastern University in Florida, in Conflict
Analysis and Resolution with concentration
in eldercare.
Dr. Manousso resides in Houston with
her husband John and can be contacted at
713.840.0828 or mediation@manousso.us.
Go to http://www.manousso.us for information
on certification programs, workshops,
lectures, and elder care mediation.
The next elder care course will be held in
January 2009. Texas paralegals who sign up
before December 1, 2008, can benefit from
an early bird special and CEU.
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