Estate Planning

Enhancing Prospects for a Successful Elder Mediation

By Hull and Hull LLP

A successful mediation requires all of the parties to commit to the process.  Earlier this week, I blogged on Elder Mediation which has evolved into a distinct practice area.  But, practically speaking, how do we enhance the prospects for success of an Elder Mediation where the personal care of a vulnerable yet capable single parent is in dispute?

More often than not, when there is a dispute between siblings as to the care of a single parent suffering from early stage dementia, the parent is residing with one of the children.  In the lead up to the mediation, the "custodial" child has ample opportunity, motivation, and temptation to spin his or her argument to the parent. While this may be inadvertent in some cases, there are clearly instances where there likely is conscious scheming to repeatedly remind the parent of supposed grievances that the parent ought to harbour against the "non-custodial" sibling.  Even if this kind of brainwashing (for lack of a better word) does not occur, the non-custodial sibling will harbour suspicions.  The mediator is then challenged to establish credibility in the face of an atmosphere of distrust. 

Mediators and counsel alike are increasingly challenged by disputes where capacity is not technically in dispute yet there is nonetheless consensus of all concerned that an elderly parent is vulnerable and in need of assistance.  The first challenge is getting the parent to attend the mediation with counsel.  This is a significant hurdle in that it requires the surrendering of a degree of control over internal family disputes (historically the parent's responsibility) to a complete stranger.  Assuming the parent attends the mediation, it may be critical that the parent is separately caucused from the children to provide every opportunity for a successful mediation.    Not only does such separation alleviate any lack of trust in the process by the non-custodial sibling but it affords the mediator the opportunity to meaningfully engage the parent in a process that can (in fact) be very intimidating.

Have a great weekend!

David Morgan Smith

Full post as published by Toronto Estate Law Blog on November 12, 2010 (boomark / email).