Elder Mediation Services Frequently Asked Questions

                               About elder mediation

What is elder mediation?
Elder mediation, like elder law, is defined by the client served and encompasses a wide
spectrum of conflict situations. It is mediation of any conflict involving an elder, either directly
or indirectly. An important principle is that the elder participates, independently or with a
representative, to the fullest extent possible. This preserves the elder’s dignity and allows
him/her maximum autonomy by giving him/her a voice in decisions that affect his/her quality of
life.

Then what is mediation?
Mediation is a voluntary, cooperative conflict resolution process in which parties make all the
decisions regarding participation, information sharing and outcome. The mediator’s role is to
guide the process so as to foster mutual understanding of all participants’ concerns, interests
and needs. The mediator is a neutral third party who does not decide any substantive issues
for the parties and does not provide legal advice or therapy.

How does elder mediation work?
Introduction: Once all those involved decide to give mediation a try, an initial session is
scheduled with the selected mediator. With the mediator’s assistance, participants review
how mediation works, make a final decision as to who should participate, negotiate how the
fees will be divided, if appropriate, and clarify any questions. Participants agree on
guidelines for how to proceed, for example, only one person speaks at a time, treat each
other courteously, etc. All participants then sign an agreement to mediate.
Informations Sharing: All participants have the opportunity to share information from their
own perspectives and describe their desired outcomes.
Defining the issues and understanding interests: The participants discuss difficult issues
that need attention, their feelings about the conflict and the underlying needs and interests
they hope to satisfy.
Generating options toward a solution: The participants generate and evaluate options that
will best satisfy their needs and interests.
Writing the agreement: If agreement is reached, the mediator will help the participants write
their agreement, as an outline for agreed upon future action. Agreements can state that a
specific plan will be implemented for a trial period, then evaluated for effectiveness. Future
meetings can be scheduled in the agreement to reevaluate any changes in the elder’s
situation and to incorporate appropriate changes into the agreement. All participants are
encouraged to consult their attorneys before signing the agreement.

Why is elder mediation effective?
Elder mediation provides a safe environment in which each person is allowed to speak
without interruption and explain his or her concerns fully. The neutral mediator helps all
participants to communicate clearly and be heard accurately. Participants are aided in
expanding their thinking to create an individualized plan for their unique situation, often
allowing for the least restrictive options for the elder. The opportunity to voice complaints,
receive an apology, and better understand specific behaviors can help participants release
emotional distress and redirect their focus to resolution.

How long does elder mediation take?
It is typical to schedule multiple sessions over a period of a few days or weeks, since the
situation is often quite complex, very emotional, multi-dimensional and incorporates long-
standing family dynamics. Each session may vary in length, but the mediator usually
schedules 1 ½ to 2 hours. Since mediation is a voluntary process, any one of the
participants may withdraw at any time.

When does elder mediation work best?
Elder mediation is most effective early in an elder’s aging process, before people
experiencing conflicting views become set in adversarial positions and no longer trust one
another. But it never too late to try elder mediation! Elder mediation can be useful to
facilitate a balanced, safe family conversation in the earliest planning stages as Mom or Dad
ages and experiences health concerns and reduced independence.

When a case involves an elder, time may well be of the essence. Elder mediation can
sometimes expedite resolution because all affected parties (including the elder, family
members, facility representatives, professional service providers, legal representatives and
others) can be present to discuss the elder’s total situation, rather than problem-solving
occurring in separate, serial meetings or proceedings.

Can elder mediation respond to urgent or emergency situations where a decision must
be made right now?
Definitely yes. This mediator is often able to respond in a short time-frame and on evenings
and weekends. Don’t hesitate to call.

My sister (or brother) has already filed a petition in court for guardianship. Can we still
mediate this situation?
Absolutely yes! If all necessary parties are willing to give elder mediation a try, it is a useful
tool to improve communication, allow the elder’s perspective to be heard, preserve or restore
relationships and ultimately may result in a less restrictive alternative to guardianship or
conservatorship.

How does mediation maintain balance and fairness?
The mediator identifies preexisting power dynamics and long-term conflict before mediation
begins. She monitors any attempts by any participants to discourage full participation by
others or to influence others unfairly, and she may terminate the mediation process if
participants are not acting in good faith.

I am not sure if my situation would be appropriate for elder mediation; how do I find out
without committing to mediate?
Just call and ask. The mediator will meet with you for a free 60-minute consultation to discuss
the key details of your situation, address any concerns and help you decide if elder mediation
would be beneficial.

Is elder mediation just a fad? Why haven’t I heard of it before?
In the early 1900’s, life expectancy in the U.S.A. was only about 50 years. If you were born in
2000, your life expectancy is 76.9 years. If you turned 65 in 2000, statistics show you could
live an average of 17.9 more years. Think how quality of life issues have evolved in the last
100 years. What happened to the concept of extended families caring for their elders? Who
knew that today there would be long-term care insurance, aging-in-place, Alzheimer’s
disease, assisted living facilities, adult day care, rampant drug and alcohol addictions
affecting families, grandparents raising grandchildren, families spread out all over the country
and the world? In 1900, healthcare advance directives, living trusts, hospice care and end-of-
life options were not topics of family conversation. “Baby Boomers” weren’t born yet. And
there was no “elder mediation”, per se. Negotiation and mediation were used historically for
handling conflicts within a tightly interwoven community or tribe. Tribal elders served as
“mediators” and many traditions and face-saving customs were an integral part of resolving
conflict in generations past. Mediation has become a frequently used method for resolving
current day conflicts in a less adversarial, collaborative way in the U.S.A. and other countries
of the world. But it is only recently that elder mediation has become a specialized new area of
mediation. Families, eldercare providers and professionals are becoming increasingly aware
of the benefits when elders, their families and others in their lives use elder mediation in
negotiating the obstacle course-like choices to be made as we age. It is definitely not a fad,
and has arrived on the scene just when the graying of America if accelerating.

                                  Confidentiality

Can a family keep the matter private?
Elder mediation occurs in a private, safe setting and all participants sign an agreement which
spells out the requirement for confidentiality. There are legal protections preventing the
mediation discussions from becoming public information; unless otherwise stipulated by all
the participants, only a written agreement, if reached, becomes public information.

What does “confidential” really mean?
Participants agree that what is discussed in mediation will remain with those participants in
the room and, if agreed upon, their spouses or significant others. When individual
conversations (caucuses) are held with a participant, nothing that is said in private is shared
in the joint session without the individual’s permission. The mediator cannot be called to
testify in a subsequent litigation, and information that has been discovered only during the
mediation is prohibited from being used in subsequent litigation. This mediator, however,
considers herself a mandatory reporter of suspected elder abuse, child abuse, or threat of
serious bodily harm to another person.

                             Selecting a mediator

How do I select a qualified mediator?
Mediation is an evolving profession and can mean different things to different people. A
broad spectrum of styles and philosophies of mediation exist and it is important to understand
the style and philosophy of each mediator you are considering. Then determine which style
is right for your situation. One of the variables to consider is the extent to which the mediator
intervenes in the process; some follow the participants’ leads completely. Others provide a
very directive style of mediation called evaluative and generally influence the outcome by
evaluating the case based on legal concepts of fairness.

This mediator practices facilitative mediation, focusing on empowering the parties to reach
understandings that benefit and improve communication, to resolve very difficult decisional
issues, and to address conflict in ways that encourage ongoing relationships. This mediator
is a neutral facilitator and the participants are self-directed.

You may wish to interview several mediators before making your selection. The ability to
establish rapport with a mediator and comfort with his/her personal style is important in
working with a mediator.

The Center for Social Gerontology (TCSG) is a non-profit organization in Ann Arbor,
Michigan that has been researching the use of mediation in guardianship and family
caregiver issues since the early 1990’s. They advocate for inclusion of the elder in the
mediation process and for using mediation to arrive at the least restrictive alternatives to
guardianship/conservatorship. They train mediators, court mediation and other mediation
program staff to use elder mediation in making decisions and resolving conflicts involving
elders. TCSG strongly recommends and trains use of the facilitative style of mediation and
acknowledges the importance of specially trained mediators who are not only familiar with the
aging process and the family dynamics often involved in these complex cases, but also are
familiar with the local aging resources and programs. For further information see their
website at www.tcsg.org.

Another excellent reference is the Oregon Mediation Association (OMA) website at
www.mediate.com/oma/. They offer an online “Consumer’s Guide to Mediation” as well as the
OMA Core Standards of Mediation Practice to which this mediator, an OMA member, adheres.

What are the qualifications to be a mediator?
As indicated in the “OMA Consumer’s Guide to Mediation”, available online at
www.mediate.com/oma/.
“Qualifications refer to the amount and type of training, education and experience possessed
by a mediator. There is currently no clear consensus on what qualifications mediators need in
order to perform competently in the many and varied contexts in which mediation is practiced
or how to assess and evaluate competence in mediators. In light of this uncertainty, many
mediators are concerned that efforts to define the process for licensing, certifying or
otherwise limiting the practice of mediation to certain individuals are at least premature and
could inappropriately limit access to, and diversity within, the practice. Others believe that
some process for monitoring mediation practitioners is required to protect consumers and
fear that if mediators themselves do not define and implement such processes, others less
knowledgeable about the best practices in the field will do so. “

“Currently in Oregon, as in most states, there is no process for a person to become certified
or licensed to provide mediation services. Work on mediator qualifications in Oregon is
currently focused on the need to define "best practice" and identify methods for assessing
the skills associated with being a competent mediator, rather than on certification or
licensure.”

How do I find other mediators who practice elder mediation?
Again, I refer you to the Oregon Mediation Association website at www.mediate.com /oma/.
There is an easy to use online search tool that will search the OMA Mediator Directory,
according to geographical area, area of mediation practice and private mediators or public
mediation programs. Yellow Page listings and referrals made by other professionals, facilities
or providers serving elders are good resources.

                                    Participants

What if no one else wants to mediate?
In an ideal elder mediation world, if you are considering mediation, you would arrange a
meeting with other possible participants and schedule with this mediator to attend and
provide an orientation to elder mediation, view a video demonstration and answer any
questions. The mediator would determine necessary participants, make plans to include the
elder, confirm that participants are willing to give elder mediation a try and schedule the first
session. In some instances, the first session might immediately follow the orientation joint
session.

If that works for you, that is great. However, it is not necessary for you to “round up” the
other involved parties and convince them to try elder mediation. In fact, in many instances, if
you are experiencing conflict with these other parties, it may be best to leave that to the
expertise of the mediator as she does comprehensive case development. This mediator
speaks with the other parties involved (after obtaining their permission), explains how elder
mediation works and discusses how it might benefit his/her situation. She obtains
concurrence to schedule a free joint orientation session and perhaps, a first mediation
session, after determining that the necessary participants are willing to give mediation a try.

What if some of my key family members live out of town?
Elder mediation may still be possible by implementing one or more strategies. This mediator
will contact those living out of town during case development. If the parties are necessary to
an effective mediation, options include:
 Scheduling face-to-face sessions around upcoming visits to the area, such as to visit
the elder.
 Arranging some sessions by telephone conference call or video teleconference.
 Online mediation using confidential e-mail or, perhaps, a private instant on-line-chat
format.

                        Necessary accommodations

My elderly Mom/Dad would be confused by mediation, so I assume they would not
participate? Right?
A key principle of elder mediation is that the elder is involved to the fullest extent possible.
This mediator would determine during case development and an in-person interview with the
elder the extent to which the elder might be able to participate in mediation. The inclusion of
a representative, such as a friend, neighbor or pastor or an advocate such as an attorney
may allow participation. Also, this mediator is obligated to determine and implement physical
and/or communication accommodations to enable participation by the elderly person. Elder
mediation values the dignity and autonomy of the elder in choices and decisions that impact
his or her life.

My elderly father/mother is hard of hearing; how would you handle that?
As stated above, this mediator is obligated to implement any communication or physical
accommodations necessary to allow the elder to participate.

Elder mediation as a complement to legal representation

How does elder mediation complement legal representation?
Elder mediation can address both legal issues and underlying issues the legal system
generally does not address (e.g., intangible values, family history and dynamics, issues of
autonomy and safety, interpersonal conflict, quality-of-life choices.) In particular, the process
provides an opportunity for elders to talk frankly with their family members about values they
hold and risks they are and are not willing to take. The elder mediation process can help
preserve, restore, or even improve ongoing family and other relationships.

The mediation process allows an attorney to represent his/her client as an advocate, while
providing an alternative to what can be a more adversarial legal process.

Elder mediation works well for disputes that have multiple interconnected issues or where the
resolution of one issue depends on the resolution of another. Parties are encouraged to
consult attorneys before and during the process and prior to signing an agreement, as well
as for drawing up necessary documents related to the agreement.

Don’t I need an attorney to mediate this situation?
You may be thinking that you need to select an attorney mediator who is completely familiar
with elder law in order to guide you in the elder mediation process. Neither an attorney or
non-attorney mediator gives individual legal advice during mediation. Some attorney
mediators who practice a directive style of mediation may evaluate the case based upon legal
concepts of fairness. However, a mediator, whether an attorney or non-attorney mediator,
who provides a facilitative style of mediation, is trained in elder mediation and works willingly
with your attorney or other professional is an effective choice. Participants are encouraged
to seek legal advice before decisions are made and agreements signed. It is important keep
attorneys updated between mediation sessions so that there are no surprises when an
agreement is written and submitted for attorney review. Frequently, the issues mediated are
underlying, non-legal issues. This mediator is familiar with medical and legal issues in aging,
as well as aging resources and programs and works smoothly with each participant’s attorney.

Can I have my attorney (or other professional) with me?
An attorney (or other professional) may be present for all mediation sessions, participate in
specific sessions where legal (or other) expertise is needed, or be available by phone during
a mediation session or caucus. Your mediator will work with all participants and professional
advisors to make appropriate arrangements.

                                  What about costs?

Who pays for mediation?
This can vary on an individual case basis; sometimes one participant will pay the entire cost;
often the total cost is shared among the participants. The portion of mediation costs to be
paid by each party is often determined prior to the mediation or may be negotiated during the
mediation process.

Elder mediation focuses on long-term solutions and is a cost-effective, efficient alternative to
prolonged litigation or repeated court hearings for ongoing disputes. In litigation, each party
usually engages an attorney and bears his/her own legal costs. In elder mediation, each
participant is a client of the mediator and the process lends itself to sharing the costs for
mediation.

If I refer my client’s situation for elder mediation, am I obligated to pay for the
mediation?
No. Making a referral, or even calling to discuss generically a situation to see if it might
benefit from elder mediation, bears no obligation to pay.

I understand that my neighborhood mediation program is free? Why should I pay a
private mediator?
There are excellent community mediation programs available in our Oregon and Southwest
Washington. These programs handle a variety of conflict areas, but do not specialize in
conflicts which involve elders. Trained volunteers often co-mediate and there is no
guarantee that you will have a mediator who is knowledgeable in aging issues, the aging
process, complex family dynamics affecting the elder, local aging resources or programs.
The elder may not be included in the process. Sometimes, much conflict resolution work is
done by telephone and not all disputes come to face-to-face mediation. Elder mediation,
both the up-front extensive case development and the multiple sessions themselves, can be
very time-consuming. Community programs may not have the resources to deal with these
comprehensive, complex situations needing long-term solutions and extensive care planning.
Ask your community mediation program coordinator how they might handle mediation of a
conflict involving an elder. This mediator offers a sliding fee scale in order to make elder
mediation available to all who may benefit from it.

                                   Getting started

How do I get started with elder mediation?
If you are a party to the conflict, just call for information and a free 60-minute consultation.
You may also use the form on the Request EMS page of this website to e-mail basic
information to begin the elder mediation process.

If you are a professional or service provider aware of a conflict, but not a party in the dispute,
you may call for a generic, free initial consultation. With your client’s/resident’s permission,
you may provide this mediator some key details and case development will begin. This
mediator obtains each party’s permission to speak with them about possible elder mediation.

When making a referral, it is usually more effective to get your client’s permission to have the
mediator call them to see if elder mediation might be helpful in this situation. If simply given a
mediator’s name and number to call, many people never follow through with that call for help.

Who initiates a request for elder mediation and when?
The first person to call and inquire about elder mediation may be, but often is not, the elder.
Mediation can be initiated by any one of the parties involved, friends or neighbors or by
professionals or service providers working with elders. Just pick up the phone and call or e-
mail with a request for information or assistance. This mediator’s initial consultation is free
and I develop the case and contact and convene the parties involved.

                               Written agreements

How are agreements enforced?
Mediated agreements tend to have a high rate of compliance because the terms are crafted
by the parties and must be mutually satisfactory to and approved by all parties before
signing. In certain circumstances, there may be enforcement by the court.

When some participants are uncertain about a particular solution, a mediated agreement
often builds in a specific trial period, schedules a reevaluation session and subsequent
changes may be implemented as mediated.

What if no agreement is reached?
There is no requirement for or guarantee that an agreement will be reached. Rather,
participants are expected to mediate in good faith, with a sincere effort to work toward a
mutually satisfactory resolution. Even when parties do not reach agreement, mediation can
help increase understanding of the other’s views and model collaborative communication
skills for future discussions.

Usually the alternatives to using mediation make elder mediation worth a try for the
parties involved.