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Texas Association of Mediators ~ 2010 Austin,Texas

By Barbara Manousso, Ph.D. (ABD). MPH, NCG, TCGTexas Credentialed Distinguished Mediator

Multiple Issues Usually multi-party cases Mediator’s concern for wellbeing of elder

• Focus on self-determination and informed consent

• Preserving the elder’s autonomy Relationships continue into the future Relationships affect others in the family

(nieces, nephews, grandchildren, spouses, etc.)

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Mediation is often not an “end point” – ongoing decisions will follow:

• If elder stays at home: Home services, care giving, bill paying, driving/transportation

• If elder moves to a residential community or facility: How to pay?Choosing a community or facilityInteracting with the facility administration

• Eventually, end-of-life, burial and funeral decisions

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The senior(s)/spouse Adult siblings Children’s spouses Grandchildren Concerned friends Caregivers Clergy Pets Advocates: friend, geriatric care manager

(GCM), lawyer, CPA/financial planner

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• Elder Attorneys / Estate & Trust Attorneys• Geriatric Care Managers• Financial Planners• Medical Doctors• Long Term Care Facility Administrators or

staff• Senior Service Providers• Families and their trusted advisors• Trust Officers• Neighbors and Trusted Friends

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• Health/medical care decisions. Who should provide the care? What care is needed? Who should make medical decisions?

• Financial decisions. How should money be spent? How should investments are handled? Concerns over “unwise spending”, etc.

• Living arrangements. Where? With whom? Who decides? How much independence/supervision?

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Communication issues. What information is needed or missing? How to share information with those who need it?

Family relationship issues. (New or long-standing.) How should the family deal with sibling rivalries, new spouse or companion, death of spouse/caregiver, other changes in relationships?

Respite care and support for caregivers. A Few More….

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Personal, household care and maintenance. Identify caregivers/service provider.

What type of care/service is needed?Safety/risk-taking/autonomy.

What safety issues are identified? Is the level of risk understood and acceptable?

Should autonomy be limited?

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Needs of other family members or caregivers.

Dependent children. Grandparents caring for grandchildren. Career demands.

Reimbursement for services. Visitation issues.

Less restrictive alternatives to guardianship.

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Decision making. Who should have authority to make decisions? What input (if any) should others have?

Respite care and support for caregivers.

Personal, household care and maintenance.

Identify caregivers/service provider. What type of care/service is needed?

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Safety/risk-taking/autonomy. What safety issues are identified? Is the level of risk understood and acceptable? Should autonomy be limited?

Less restrictive alternatives to guardianship.

Needs of other family members/caregivers.Dependent children. Grandparents caring for grandchildren. Career demands. Reimbursement for services. Visitation issues.

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The family who needs to dispose of the family home and sentimental assets.

Children who can’t talk with their parent(s) alone or as adults to adults to change living arrangements and end of life decisions.

Long term care falls short of expectations for the resident and their family. Help is needed.

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Don’t predetermine the DR process “Let the Forum Fit the Fuss”- Frank Sanders

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Conflict Coaching When essential parties are unwilling to come to

the table When mediation is at its end but some parties

still want assistanceNote: Don’t use same individual as mediator and coach

A mix of interest and rights based negotiations

Arbitration Case evaluation

Each family has a unique, often tacit, understanding of how decisions are made and conflicts are resolved.

This is their “dispute system.”

Dispute Systems Design (DSD) See: Harvard Negotiation Law Review's (HNLR)

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• Convening / Conflict Assessment / Agenda Building• Everyone heard - no one dominates• Build consensus: “Can everyone live with this?” If not, “What can you suggest that will be acceptable to the

group?”• Avoid “taking a vote” which can create a

discontented minority• Work towards durability and satisfied constituencies

Larry Susskind/Consensus Building Institute, Cambridge, MA Susskind, L. E. & Cruikshank, J. L. (2006). Breaking Robert’s Rules.

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Co-mediation Expert Advisors and Community Resources Creating an agenda and using flipcharts Writing “meeting summaries” Forming Sub-Committees Use of Teleconferencing, email, online dispute

resolution (ODR) Meeting wherever it works best and for how ever

long is appropriate Taking breaks Breaking bread / Family Retreats

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This may need to be mediated Some possibilities:

• “Family Champion” may coordinate payment for first session and beyond

• Costs are divided among family members • Parties consider differing financial

situations• Funds are taken from the estate or trust• The parent(s) may choose to pay

Be mindful of impact on neutrality of mediator

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Bringing necessary parties to the table

Roles and readiness of multiple stakeholders

Geographically dispersed

Diversity of cultures

Ageism

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Awareness of ethical issues: “Do No Harm”

Neutrality -protecting the older adult: bias or fairness?

Confidentiality- Elder Abuse, a need for services

Informed Consent -When all the facts are not on the

table Enhancing a participant’s capacity to mediate -

may be possible with appropriate support of a personal advocate/friend or a legal surrogate and with insightful accommodations.

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“Culture is an essential part of conflict and conflict resolution. Cultures are like underground rivers that run through our lives and

relationships, giving us messages that shape our perceptions, attributions, judgments, and ideas of self and other.”

Michelle LeBaron, July 2003.

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How biases, stereotypes, and assumptions impact the mediation process

• The wrath of ageism-social acceptance of stereotypes and prejudices diminishes autonomy, self-determination and dignity

• Age, race, ethnicity, gender, birth order, religion etal.motivate how people relate to each other

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Reality Check about the mediator’s values and assumptions of what a successful mediation is.

Whose definition of success is applied to the process- the mediator’s or the participants’?

Standards of practice and ethical guidelines for elder/adult family mediation are evolving from existing models.

Developing mediator competence is a continuing process of self reflection together with advanced elder mediation training, mentoring, practice/study groups, conferences, reading and seeking out best practices.

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American Bar Association & the American Psychological Association. (2006). Judicial Determination of Capacity of Older Adults in Guardianship Proceedings. Washington, D.C. Available online at http://www.abanet.org/aging/docs/judges_book_5-24.pdf

Benjamin, R. (2008). Escaping the Tyranny of Professionals: Determining fitness to mediate? Mediate.com. http://www.mediate.com/articles/benjamin38.cfm?nl=148

  Cohen, J. (2003). Fulfilling Your Obligation on Mediation Capacity.

Mediate.com. http://www.mediate.com/ADAMediation/editorial5.cfm#

Dugan, E. (2006). The Driving Dilemma: The Complete Resource Guide for Older Drivers and Their Families. New York: Collins.

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Dugan, J. H., & Kardasis, A. (2004). Elder Decisions in Elder Mediation. Mediate.com. http://www.mediate.com/articles/dugan1.cfm 

Henry, Stella Mora. (2006). The Eldercare Handbook: Difficult Choices, Compassionate Solutions. New York, NY: HarperCollins Publishers.

Kardasis, A & Larsen, R (2005). When Aging Issues Lead to Family Conflict. Massachusetts Lawyers Weekly: April 11. (Available at www.ElderDecisions.com.)

Larsen, R. & Thorpe, C. (2006). Elder Mediation: Optimizing Major Family Transitions. Marquette Elder's Advisor Law Journal, Volume 7, Number 2. (Available at www.ElderDecisions.com.) 

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LeBaron, Michelle. "Culture and Conflict." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Research Consortium, University of Colorado, Boulder. Posted: July 2003 http://www.beyondintractability.org/essay/culture_conflict

Mariani, K. (2007). Developing Ethical Standards for Elder Mediation: Questions along the way. BIFOCAL: Bar Associations in Focus on Aging and the Law (Journal of the American Bar Association Commission on Law and Aging), Volume 28, Number 6. Available online at www.abanet.org/aging/docs/Aug_07_ABA_Bifocal_J.pdf

Marrella, D. (2005). Who Cares: A loving guide for my future caregivers. Sanford, FL: DC Press.

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Nelson, Todd D. (2004). Ageism: Stereotyping and Prejudice against Older Persons. Bradford Books. The MIT Press.

Stum, M., Bubolz, C., & Althoff, C. (1999). Who Gets Grandma’s Yellow Pie Plate Workbook. St. Paul, MN: The University of Minnesota Extension Service. Online resources, and ordering information for workbook and related video available at http://www.yellowpieplate.umn.edu

Susskind, L. E. & Cruikshank, J. L. (2006). Breaking Robert’s Rules. New York, NY: Oxford University Press.

  The Center for Social Gerontology. (2002 Rev.). Adult

Guardianship Mediation Manual. Michigan: TCSG. Ordering information available at www.tcsg.org

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  U.S. Administration on Aging. (2001). Achieving Cultural

Competence: A Guidebook for Providers of Services to Older Americans and Their Families. www.aoa.gov . http://www.aoa.gov/PROF/adddiv/cultural/CC-guidebook.pdf.

Wood, E. (2003). Addressing Capacity: What is the role of the mediator? Mediate.com. http://www.mediate.com/articles/woodE1.cfm#

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Barbara Manousso, Ph.D. (ABD), M.P.H. , NCG, TCG

713-840-0828

Manousso Mediation offers the next Elder and Adult Care Mediation training on

Wednesday, March 17th and Thursday, March 18th in Houston, TX. For more info, go to

[email protected]

http://www.manousso.us

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