American Hero or Mental Incapacity?

This past summer Buzz Aldrin’s children sued him in order to gain guardianship and decision -making authority over their father’s health, safety and welfare.  The children acted and moved for guardianship because of their father’s increased memory loss and confusion.  Mr. Aldrin counter-sued his children seeking to keep his independence.  Litigation had a devastating impact on the family.  The court ordered medical testing, and in the end declared that Mr. Aldrin had all his faculties and powers in place and can act on his behalf.

Do you have to have walked on the moon to have a court declare your independence? Do you need a court involved at all in making decisions that are at the core of a family’s well-being? If a family is in dispute what can they do as an alternative to a litigated solution.  Elder mediators provide families an option.

An elder mediator develops a collaborative approach to resolving the dispute. The mediator following the interests of each family member defines the key concerns and interests expressed by all parties. If the Aldrin family had requested services of an elder mediator, could an independent medical evaluation still have been conducted.

The difficult conversation in this hypothetical is what if the medical evaluation determined that Mr. Aldrin was not fit to manage his estate, business and key decision making?  What if Mr. Aldrin refused to adhere to the recommendations from the evaluation?

In establishing the process, the mediator will develop an agreement outlining the process.  Presuming Mr. Aldrin signed the agreement, was advised by his personal attorney that it was a fair procedure and one that would track to any court procedure, would be less costly, less adversarial and maintain some degree of peace within the family – why not give elder mediation a try in such a circumstance?

 

Family Foundation Disputes

The head of the family has been diagnosed with early onset dementia. The foundation and trust agreements have a provision that if any one of the principals of the trust is not capable of serving, the remaining principals may vote for removal. When you are removing your mother, father, sibling or a loved one from the foundation’s leadership, you are challenging the very fabric that has held your life in place.  Children often feel guilty, timid, and uncertain if they are making the right decision.  A strong patriarch or matriarch often makes it even more challenging if they are in denial or avoiding the reality of their physical/mental condition.  What are the options when the dynamic has one group faced with the hardest decision of their life, while another do not believe the issue to be ‘that bad’. All family members have the best interests of the foundation at heart and face a most difficult decision.

It is quite understandable that a closely-knit family may not want to include an outside mediator into the fold. It is also understandable that the parties are aware of the consequences of non-action! Is the health, safety, and security of the family threatened by this situation. Is non-action a viable alternative? If the family is divided now, what is going to change after a serious event occurs, or does the event just exacerbate the differences?

A skilled elder mediator is going to begin to build trust and understanding between all the family members.  The mediator will work with the family members to understand why they believe what they do. When the other family members begin to understand and listen with assistance from the mediator the family can begin to work together to meet everyone’s underlying needs.

The classic example in an elder mediation where the parent does not want to stop driving and one child understands how dire it is for their parent to maintain independence in life and another believes that the parent is unfit to be on the road – how does the family resolve this simple but yet perplexing situation?  The mediator will work with the family members to begin exploring options for resolution – maybe have an evaluation by Department of Motor Vehicles performed, or a doctor’s assessment. When the family members agree about approach and the desired outcome, communicating with the elder is going to stand a greater probability of success.

The Importance of asking WHY!

Probably the most important in negotiation.  Yes, a two-year old might cry why do I need to go to bed now, a twelve-year old might ask- why do I need to clean my room and a teenager might ask – why do I need to call you if I am coming home after curfew. All age appropriate retorts in a parenting context.  In a negotiation, the question why is not one of defiance, but of understanding. At the core of a win-win structure, are all parties and participants in the negotiation understanding the core needs and interests of each other.  This does not mean that you necessarily have to agree with what the needs are the other party is stating, but it does take a sign of character, leadership and integrity to be able to listen deeply to the other.  It means that most people when listening in a conflict situation have their ears tuned into their own radio station with the call letters WIFM (What’s in it for me?). But what if we change the call letters to WETA. When there is empathy, trust and attention to what the other is saying, a conducive atmosphere is developed for a sustaining and durable settlement.

The why question is the directional focus for the negotiation.  If a settlement cannot be achieved, go back to the why questions and see what is not being expressed.  Remember in a deep-seated conflict, trauma, disappointment, anger, shame, fear, can be so deep rooted, not many human beings are prone to want to share themselves this roar to the bone.  In When there is empathy, trust and attention (WETA) there is a greater chance for honest and authentic sharing to take place.

The true response to why often produces the tell-tale signs for a settlement structure to come into place.  Participants who understand the value and import of why often leave this type of negotiation feeling better about themselves, the other, and see a brighter future.

Why Collaborative Law?

In the Divorce context and possibly probate/family disputes, and certain employment disputes, Collaborative Law is worthy of consideration.  Collaborative Law is a process that has all participants, the disputants, the lawyers, coaches all commit to settlement through negotiations taking place.  The purpose is that everyone involved only sees and works towards settlement and not position for a future litigation as sometimes naturally occurs in a traditional settlement/litigation setting.

What is important for the disputants to consider when weighing a collaborative approach is the emotional trauma that impacts everyone in the family and friends surrounding the divorce.  The collaborative law settlement option is comprehensive in that it provides for all individuals impacted with a representative. This means simply each disputant has their own counsel, their own parenting coach, a financial coach and a child coach if needed.  Experts have found when all perspectives are heard and factored into each key settlement provisions, a more balanced agreement is reached.  Conflict resolution theorists call this a triangle of satisfaction:  participants are satisfied with how the process was conducted, the substantive discussions and outcomes, and how psychologically it felt.  Collaborative law meets all these standards.

The collaborative process is designed to meet the dynamics and needs of the family in dispute. In collaborative law there is no formal discovery as there is in a litigated-court oriented process. By agreement and cooperation, the parties decide what is essential for determining a durable and sustaining agreement.  This effort alone saves thousands of dollars in often unnecessary legal fees and emotional cost.

Do I need to proceed through the courts to achieve a valid settlement of my family dispute?

Any divorce proceeding requires the local court to ratify the final property, custody and visitation agreement and issue a legal decree ending the divorce.  This does not mean that the process needs to begin with a court filing.  To the contrary, most family dispute settlements begin outside the courthouse with a conversation with an attorney who can represent you in the settlement negotiations and when a deal is reached file for the divorce in court.  Conversely, you can contact a mediator who will sit with both sides and work through to a settlement. These are the two most frequented procedures in the family law area today.  It is the client’s responsibility to begin researching and asking questions regarding these processes and it the attorney’s professional responsibility to outline all the options that are available while reviewing the pros and cons of each.

It is important to note there are definite cases when a traditional settlement approach is not warranted.  The courts and court psychologists consider cases of domestic violence inappropriate for family mediation because of the power imbalance – the trauma, fear, safety and non-constructive way in which the parties are communicating simply do not work in a mediation context.  There also may be cases of infidelity, neglect, or abuse that cause one party to feel ill at ease in the presence of the other that mediation becomes a challenging option.

It is understandable that in almost all successfully negotiated settlements through mediation, there is a level of conflict that makes the process uncomfortable, uncertain, and difficult to predict the future. The important first step in the process is to meet with a trusted counsel who will have your interests in finding the right settlement or litigated process that fits your circumstances. It can be even more helpful when that individual can serve as your counsel or mediate the dispute.