Using Integrative Mediation

To Resolve Probate, Trusts and Eldercare Issues.

“Winning” by proving in open court that your mother or father is failing mentally, or that your sibling has taken money or improper control of family funds, is traumatic and expensive.[i]  Integrative mediation can offer a more relevant and satisfying alternative.  By using both an attorney and a mental health professional, integrative mediation brings a unique resource which expands the options for conflict resolution by addressing the psychological and emotional aspects of what can masquerade as only a legal dispute.

The traditional legal approach is not designed, and attorneys using it are usually untrained, to address the emotional issues which underlie and drive many probate and elder care litigations.  Frequently, the emotional needs and issues of the parties are substantially bypassed in traditional probate models.  Yet those emotional needs and issues are the driving force behind virtually all probate conflicts.  The unique team configuration of integrative mediation is designed to identify, address, and honor emotional needs and issues.

Surveys have shown that some of the more litigated issues include sibling vs. sibling, local vs. remote caregivers, natural vs. step-children, caring for divorced parents  (parents-in-law), etc., and including disputes over property, inheritances, powers of attorney, gifts, and even disputes over parents’ advance healthcare directives.  Litigation provides poor solutions at high cost; whereas using integrative mediation to resolve disputes between siblings caring for aging parents, for example, would be an ideal application.

Seniors are increasingly vulnerable to elder fraud and abuse, baffled by the quagmire of medical insurance and expenses, and prone to illness and incapacity.  However, parents often resent and resist efforts by their children to intervene in their lives; conversely, adult children in turn are emotionally unprepared and reluctant to assume unfamiliar roles with their parents, and conflicts among siblings about care for a failing parent are common, harking back to old family conflicts in a new context.

A classic, if heartbreaking, example of the limitations of the legal system involves disagreements among adult siblings about the type and manner of providing assistance to an ailing parent.  In one case, a daughter with limited resources, and a child of her own, moved in with her widowed mother to provide companionship and assistance.  Over time, despite her good intentions, the daughter became dependent on her mother for housing and living expenses but unable to provide the complete care her mother needed.  Another daughter, a busy professional with her own family, had the responsibility of successor trustee, financial power of attorney, and healthcare agent.  As the mother’s health declined, there was increasing need of professional care-providers at substantial cost.  One practical option was for the successor trustee daughter to evict her sister, sell or rent the home, and place her mother in an assisted living facility.  As a further complication, a third daughter, living out-of-state, was very concerned about her mother’s health but upset that her mother might be forced from her home, while unable to help her from a distance.

Traditional litigation would center on the mother’s capacity to make her own decisions, putting her in conflict with her successor trustee who would challenge this.  The daughter living with her mother would have a conflict of interest based on her wish to continue living in the home despite her mother’s health need, and the third daughter would be in the midst of a family conflict with limited input and ability to rescue the situation.  In the end, what so often happens is that regardless of the outcome family members are left with long-term resentment and division.  Bringing all of the parties together with a trained attorney/mediator and a mental health professional could connect the family members and support them to participate in a creative dialogue and mutual problem-solving approach.  This would be best for the mother, and maximize the cooperation of the daughters going forward.