Mediation and Collaborative Practices

There are many options to resolving or managing conflicts:

• DOING NOTHING. Ignoring conflicts allows many small conflicts to build up into a perfect conflict storm. Obviously we do not recommend this option. Disputes are to be resolved or managed, not ignored.

• SEEKING HELP FROM A FAMILY MEMBER OR FRIEND TO RESOLVE DISPUTES. This is a good start. Many family conflicts are resolved or managed within the family. Certain conflicts, however, are better resolved or managed with professional help. Professionals such as mediators and collaborative practitioners bring with them specialized skills and knowledge needed to assist the family manage highly charged emotions and resolve complex legal, medical, and financial concerns.

• LITIGATING IN COURT. Filing lawsuits to resolve family conflicts relating to the management of an elderly parent’s care and finance, conservatorship proceeding, inheritance, or validity of a will, trust, health care directive, or power of attorney for finance should be the last option. Litigation is expensive financially and emotionally. Family members who have litigated against each other also rarely talk to each other during and after the litigation, resulting in severed relationships. Litigants who went through the litigation process shared that had they known about other options to resolving disputes they would have first exhausted those options. Again, we discourage litigation unless mediation and/or collaboration have been utilized more than once. Furthermore, most of court cases settled. Thus, there is no benefit for going through the expensive and stressful litigation process when a similar or better result can be achieved sooner and less expensive through mediation or collaboration to resolve trust, estate, and conservatorship disputes.

• MEDIATION. Mediation is a process in which one or two mediators, who are neutral individuals trained and experienced in mediation processes, assist the family with finding solutions to their disputes. Unlike a judge, mediators do not decide who is right or wrong. Mediators facilitate communications between family members so that each concern can be heard, understood, and addressed. The mediator also assists each family member involving in the conflict to understand the impacts their positions have or would have on other family members and the pros and cons of the alternative, which unfortunately is litigation, should the family unable to resolve their dispute in mediation.

• COLLABORATIVE PRACTICE FOR TRUSTS, ESTATES, AND CONSERVATORSHIP. Unlike mediation, collaborative practice involves an interdisciplinary team of professionals who are available to assist the family as needed. The number of professionals needed at any one time is determined by the complexity of the issues in dispute, the number of individuals involved, and the intensity of the conflict.

Certain cases require only two professionals to work with the family whereas other cases demand two or more professionals from different disciplines. For example, if two siblings disagree over the guidelines for visitations with their elderly father, two professionals may be sufficient—one is a communication coach to help family members communicate with each other and the second professional may be an attorney to explain legal rights of the elderly parent and court process if the court is involved. If care is an issue, a care manager may be involved.

On the other hand, if four siblings accuse each other of wrongdoings — mismanaging finance of their elderly parent with Alzheimer’s; unduly influencing their parent to change a trust, will, health care directive, or power of attorney for finance; isolating their parent from other family members; and not properly caring for their parent —more than two professionals most likely are needed to assist the family.

A team of interdisciplinary professionals provides the necessary expertise to help the family manage conflicts for long-term benefits, not quick-fix. Having two or more professionals may seem costly, but that is not necessarily the case. Each professional comes and stays in the case only as needed. For example, an attorney may come into the case to explain the necessary legal procedures while a financial planner may later get involved to explain how long the money will last. Once crucial information and guidelines have been provided by professionals, the family will undoubtedly be more equipped to work together to structure a sustainable long-term conflict management plan.

An harmonious family relation is the best legacy to current and future generations. Many conflicts can be managed within the family or with the help of a trusted friend. Other conflicts require the assistance of outside professionals such as mediators and collaborative practitioners trained and experienced in trusts, estates, conservatorship, health care directive, and power of attorney for finance. Conflicts should be managed as soon as possible before they become a destructive force that bankrupts the family and ruins relations for generations. Conflicts that have been built over many years may need more than one or two attempts with mediation or collaborative practice. Thus, do not give up on mediation or collaboration if the conflict cannot be managed after one or two attempts.

Contact us for a consultation if any of the following applies:

• You need help caring for yourself and/or your spouse.

• Your children, friends, or others want to take over your finances.

• Your children, friends, or others want to make medical decisions for you.

• Your children, friends, or others want to move you from your home and into a care home (nursing home) or their home.

• Your children, friends, or others want to move into your home to care for you.

• Your children, friends, or others take advantage of you.

• Your spouse has dementia and you do not know what to do.