An Introduction to ADR and Elder & Family Mediation

Dealing with Differences When Aging Issues Can Lead to Family Feuds

Presented by:

Heather W. Tanksley, M.S., PHR May 14, 2015

Virginia Beach Task Force on Aging (VBTFA)

Copyright 2015, COVENIA Mediation and Facilitation Services, LLC, All Rights Reserved

What is Alternative Dispute Resolution (ADR)?

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• ADR refers to alternatives to litigation and other “later stage” methods for dealing with important issues or conflicts involving two or more parties

• ADR approaches vary along a “continuum” of options, such as:

• Negotiation (independent or with coach/counselor) • Facilitation (group, basic, developmental) • Mediation (facilitative, evaluative, transformative) • Arbitration (advisory, binding, or non-binding) • Collaborative Law (contractual agreement development)

• May include special rights advocacy (Ombuds)

Dispute Resolution Continuum

Decisions by Dialogue Decisions by Parties Decisions By Authority Decisions by Force

(High Party Control Over Process and Outcomes) (Low Party Control Over Process and Outcomes)

Conciliation Consensus

Negotiation

Mediation Facilitation

Arbitration Litigation

Prosecution Violence Riots

War

Costs to address conflict INCREASE RAPIDLY $$$

“Early Intervention Stages” “Later Stages”

Mediation: What is it? • A voluntary, private meeting that brings the right people together

to openly discuss and resolve unique issues of concern, optimally before detrimental escalation or a crisis event

• Professionally facilitated, confidential conversation(s) guided by a trained neutral 3rd party (the Mediator), supported by clear ground rules, and a forward-thinking, results- and solutions-oriented focus

• A typically fair process that opens up lines of communication based core principles of informed consent and self-determination

• An approach that promotes balanced participant “voice,” and open, safe, constructive dialogue

• An option that strives to maintain human dignity and promote positive relationships and collaborative decision making

• Not therapy, although it may have “holistic healing” merit

What is “Elder Mediation?” • An expanding ADR niche within the practice of mediation (as

a complement to other elder related services) • Sprung up as an off-shoot of Family and Divorce Mediation

in the late 1980s as focus on aging population increased • Pioneered in the early 1990s by the Michigan Center for

Social Gerontology for use in resolving adult guardianship issues; formal multi-state study revealed 75% effectiveness

• Often used to help senior adults, families, and other appropriate parties to identify, discuss, and determine workable support options and make effective decisions concerning senior-related issues (earlier the better)

If Mediation is more widely understood as an option and proactively used, it can very likely reduce unnecessary family traumas and dramas involving “aging issues!”

BTW: It isn’t ONLY for Elders/Families Mediation and facilitation are professional services that can be used by almost ANYONE who is experiencing a problem for which positive resolution is desired/required by involved parties . . .

• Business, consumer, and/or community issues • Employer/Employee and/or workplace issues • Service Provider/Vendor issues • Service Provider/Customer issues

• Home Health and/or Personal Care providers • Senior Housing and/or Assisted Living providers • Healthcare and/or Hospice Care providers • Funeral Care providers . . . and MORE

They are PROVEN methods for resolving critical issues!

Is “Elder Mediation” Necessary? It depends; not every elder or family needs it . . .

• “Graceful Transitioners” face aging issues on their own, they do targeted legal, financial, and/or end-of-life planning and communicate effectively

• “Successful Strugglers” seem to deal with major issues effectively enough to eventually produce successful outcomes and family members feel generally okay and comfortable with the final decisions

• “Quietly Bruised Families” experience discomfort and disagreements fester under the surface; family member alienation is common; relationships often suffer

• “Litigious Lamenters” resort to litigious solutions; wounds abound; relationships may be ruined

Who Might Be Invited to the Table? • Senior Adults (Elders) • Family Members (spouses, children, siblings, the dog, etc.) • Caregivers • Social Workers and/or Representative Advocates • Legal Advisors • Financial Advisors • Homecare and Healthcare Service Providers • Clergy Persons • Funeral and Related Service Providers • Other Important and Necessary Parties

Parties who are closest to the problem and those who may likely add value to the problem solving process . . .

Where Might “The Table” Be Located? • A neutral office space • A quiet retreat facility • A hotel room or select conference room • A park or a favorite family locale (private setting) • A professional office • A nursing or healthcare facility, including resident room • A place of worship • May also consider video conferencing (e.g. Skype)

Ideally, a safe, private, accessible space that’s conducive to promoting comfortable, balanced, productive dialogue

Potential Substantive Issues • Caregiver roles, responsibilities, needs and expectations • Living options and housing transition decisions • Long-term care choices, insurance issues, and related concerns • Legal issues; wills, trusts, POAs, guardianship, healthcare proxy

concerns • Medical issues, end-of-life issues, and related preferences • Estate planning, funeral planning, and/or financial planning issues • Tangible property distribution, sale, and/or other allocation issues • Intergenerational issues related to preservation of family legacy • Community/Residence, landlord/tenant, and/or neighbor issues • Sibling squabbles and rivalry concerns • Identified concerns unique to the parties involved

Pseudo-Substantive Considerations

• Human emotions • Entrenched relationship dynamics and historical behavioral

patterns • Closely held prejudices and biases of the parties • Complicated family roles (parent-child) • Core beliefs, realities, values, and principles of the parties • Myths and superstitions, perceived “taboos”

Key Mediation Techniques and Skills Some of the core techniques and critical skills employed, include:

• Active, reflective listening • Acknowledging and validating input and conciliatory gestures • Clarifying information, verifying assumptions and understanding • Summarizing and reframing • Generating empathy; separating persons from problems • Generating forward thinking and optimism for resolution • Illuminating interests, needs, facts, and common ground • Identifying and creating options from illuminations • Brainstorming alternatives; setting aside limitations • Evaluating options and selecting workable solutions • Reaching and clearly documenting collective decisions

Mediation vs. Ombuds & Advocacy Roles • Many of the same techniques and skills used in mediation are used

in Ombuds and other advocacy-oriented roles (e.g. social work)

• Key differences include the degree of related confidentiality and the level of neutrality employed in the process of resolving situational issue(s), in addition to levels of specialized training and expertise

• Common very important considerations include: • Competency and capacity of parties involved (ethical issues) • Issues of abuse, neglect, and safety • History and facts • Power of parties and who’s involved • Party rights and/or legal authority • Interests and underlying needs of parties

Mediation: What are relevant steps? • Consultation to examine situational appropriateness

• Determination of “capacity” • Examination of general circumstances and situational context • Selection of parties, their readiness and related willingness • Ethical considerations (e.g., abuse, capacity) • Logistical considerations (geography, etc.) • Legal considerations • Payment considerations

• Mediation notifications, invitations, scheduling, and contracting • Pre-mediation fact-finding, party conferences and caucuses • Guideline establishment, mediation and caucus sessions • Reviewing, drafting and documenting agreements

General Cost of Mediation • Varies based on the number of parties involved, comparative

complexity of the issues, geographical dispersion of parties and how and where mediation will take place

• Can range from $25 to $400+ per hour of applied mediator time, sometimes billed in quarter hour segments; sometimes may include rates based on multiple-hour segments (e.g., $300 for first two hours, then $100/hour up to XXX number of hours)

• May be split among the parties; privately paid • Generally paid immediately post-mediation session; some may

require a retainer or deposit in advance of mediation; may consider creative financing options in special cases

• Bottom line: It may depend on the circumstances and may be negotiable based on the situation (yes, pro bono may be available)

Any questions, answers, insights, or AH-HA moments?

Heather W. Tanksley, M.S., PHR Executive Director; Principal Mediator/Facilitator COVENIA Mediation and Facilitation Services, LLC 800 Waterfall Way Chesapeake, VA 23322 954-647-9114 (cellular) 757-482-0438 (personal office) HWTanksley@bellsouth.net