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Elder Mediation — The Time is Now

Posted by Sharon O'Day on with 0 Comment

A happy family is but an earlier heaven. George Bernard Shaw

I am often asked “what is elder mediation?” People are familiar with the concept of family mediation in a divorce or contested custody dispute. Mediation is also often used in workplace conflicts or personal injury cases. But not many people have heard of Elder Mediation. This is truly a shame, because with the aging baby boomers and the increase in longevity, the need for elder mediation is growing, even if it is not yet a widely known form of conflict resolution.

The easiest way for me to explain Elder Mediation is with a story:

A graceful widow in her 80s has three adult children whom she loves dearly. Unfortunately, while they love her, the relationship between the three siblings is not close. There is a certain amount of mistrust and antagonism between the three children. Thanksgiving is usually the only time they all get together with their mom. The rest of the time the children are spread around the country, doing their own thing.

One day in early April the eldest child, the son, who lives in New York, calls his two sisters to announce that he has had a conversation with mom and has decided that he will use his Power of Attorney to sell her house and move her to an assisted living. When the two younger sisters resist this decision, he explains that he is very concerned that mom has become too fragile and her memory is slipping. He is worried about the liability if she is driving and her safety if she is home alone.

The second child lives in California and was home to visit mom in Florida in January and protests that, when she was there, mom was perfectly fine. Mom told her she wanted to stay in the house that she lived in with her late husband forever. This daughter says that she knows the son was always too controlling and now just wants to control mom’s money. The siblings reply that the middle child was always a bit of a flake and never really did want to consider the hard truth of mom getting older and frail.

Finally, the youngest daughter pipes up that she has also spoken with mom and the two of them have decided that the youngest should sell her home and move in mom to help her out. This would mean quitting her job but mom would pay her to run errands and fix her meals. Mom even promised she could have the family house after mom passed if she would take care of her in her golden years. The other two protest that the youngest is just plotting to take over the house and that this was not what dad wanted before he passed.

The truth is, that when each child calls mom and talks about their plans to care for her, she is agreeable to each scenario. She usually responds with “your right darling. I will tell your siblings that you are right” but then, when the next call comes she agrees with the plans of that child. Her main concern is to limit conflict in her life and to try to have as many peaceful Thanksgiving as she may have left.

In many families, the son may use the Power of Attorney to list the house and start looking for a way to move mom to an assisted living facility. The sisters may then try to intervene by filing for a guardianship or trying to convince mom to revoke the power of attorney and issue a new one to one of the girls. Lawyers are hired by each side and considerable money is spent fighting between the siblings. Meanwhile the animosity between the children grows to hatred and there are no more Thanksgivings together at all.

The other alternative is to seek out an elder mediator to help. With elder mediation we bring everyone together to examine all of the issues and seek out the best solution that will meet as many of the interests as possible. The participants consult with outside professionals such as estate planning attorneys, geriatric care specialists, community resource professionals and financial planners to have all of the information that is necessary. Elder mediation provides a confidential process to find solutions that are respectful of everyone and considers everyone’s concerns. The mediator is a specially trained neutral professional who does not impose any decisions but rather seeks out alternatives that best meet the needs of the elder and the family.

The elder mediator can address a multitude of issues for families in transition including, caregiver issues, financial management, living arrangements, health care planning, driving and safety issues, family business planning and estate and trust issues. If you think elder mediation can help your family, make sure to look for a professional certified as a mediator, with training in elder issues and experience with the complexities of family dynamics.

Collaborative Law — A Paradigm Shift to a New Beginning

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It is the long history of humankind (and animal kind, too) those who learned to collaborate and improvise most effectively have prevailed. —Charles Darwin

This week I attended the Inaugural Collaborative Family Law Conference of the Collaborative Family Law Council of Florida. It was so exciting to attend a conference with so many professionals dedicated to resolving family conflict in a peaceful and non-litigated way. We had workshops on negotiation techniques, helping clients through collaboration, creative financial solutions in collaborative cases and optimizing the mental health professionals in collaborative law.

But, perhaps my favorite workshops were the ones that addressed ways to spread the word of collaborative law. This is because I so much enjoy bringing this concept to my clients and facing the trauma of divorce and family litigation. After representing so many individuals in family court I have come to the absolute and unshakable belief that our adversarial process is the worst alternative for most families in transition. The decision to get a divorce is already one of the most painful and frightening decisions that a person can make. The husband and wife are already under enormous stress because of the facts that lead them to the lawyers office for the initial consultation. Too often the divorce is precipitated by financial difficulties, disagreements about child rearing, or perhaps the mistrust bred by infidelity. To then force the couple into a rigidly structured judicial system that rewards the best adversary with a “win” is so destructive to the family on many levels.

It is, I believe, common knowledge that litigation is extremely expensive.  The idea that one side should play “hide and seek” with information and only provide it to the other side when ordered to by a court is clearly not cost effective.  As a litigation attorney I have seen how the price of a divorce and continue to climb as we conduct depositions, business valuations, forensic accounting reviews, social investigations, and every expanding legal discovery.  Clearly all of this legal rangling takes a long time to play out while all of the parties lives are on hold.  Perhaps most tragic of all though is the emotional toll the litigated divorce has on the parties and their children.  As animosity is escalated, the children clearly suffer.

So, some professionals that have worked in the system for many years have developed an alternative. The new system, Collaborative Law, allows the participants, the divorcing couples and their lawyers, to work together with trained financial and mental health professionals to find the best solutions to the issues that need to be resolved by the family. The main premise of a Collaborative Divorce is that the clients and the attorneys work together through negotiations to reach a settlement which meets as many of the parties needs as possible. The process is client and child focused. The parties agree to be open and honest in their communication and in providing all necessary documents or information to make informed decisions. The participants all promise to be respectful and honor the dignity of the process and the participants. Everyone involved in the process is committed to working towards healing the parties and the family.  This means that the threats and intimidation are not used and there is never a goal of forcing the other side to prove their case to be successful.

Perhaps the hardest element of the collaborative process for untrained attorneys to grasp and agree to is the participation agreement. This contract, signed by the parties and the attorneys, provides that, should the collaborative process fail, the clients will retain new counsel to begin again. Most lawyers not trained in collaborative law will say, “I will work with the other side, but I will not sign a collaborative contract. I want to represent my client if settlement doesn’t work.” I am all too familiar with this statement because I made it before I understood the Paradigm shift. The shift is what allows the collaborative professional to fully participate in the process. The shift is when the collaborative attorney commits to laying down all the weapons in their litigation arsenal and fully embrace the new way of thinking and speaking that is completely collaborative.

Collaborative Divorce is the new big thing in family law.  It is also working its way into other areas of law when parties want to avoid litigation and find a new way to resolve conflict.  It is important, if you are thinking of seeking a collaborative divorce, that you ask questions of your professional to ensure that they are truly as committed to the process as you are. Ask about their training, their understanding of the process and their willingness to sign a participation agreement. Ask if they have a membership in a collaborative group in their area. There are no state guidelines for collaborative professionals in most states yet. But there are a growing number of professionals committed to this creative idea. Having spent two full days in a conference full of such professionals, I can tell you that you really “know it when you see it”.

Hello from the Professional Resolution Center

Posted by Sharon O'Day on with 0 Comment

 

Abraham_Lincoln_November_1863Perhaps my favorite legal quote is the one from President Lincoln: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.” Lincoln spoke these words over 150 years ago, but they could not be more true today!

 

At the Professional Resolution Center we are professionals who are dedicated to helping people find peaceful ways to resolve conflict. That is simple and yet complex. We assist people through mediation, parent coordination, collaborative representation, agreement facilitation and negotiation coaching. We teach negotiation and mediation skills. We are attorneys with a combined half century of representing people in court and other adjudicative situations. From this we have learned that there is almost always a better way to solve problems than litigation. This is not to say that the court system in the United States is anything less than the best system in the world. But, lets face it, other than attorneys, no one really wants to end up in court, turning their problems over to a judge. The system is financially and emotionally costly. It is time consuming. It is a public airing of all issues brought before it. And, perhaps most troubling to the litigants, no matter how convinced you are of your position, there is never a guarantee of victory.

 

The purpose of this blog is to raise awareness of the many alternatives available to people embroiled in conflict. We also hope to educate visitors a bit about some techniques that may help people avoid conflict in the first place, or to resolve it without the need for outside help. After all, knowledge is power and by passing along some of our experience and knowledge we hope to empower our visitors. The purpose of the blog is simply to discourage litigation!