The first option to explore is negotiation. Typically when a disagreement arises between two or more people, they attempt to resolve their differences through informal negotiation. In a negotiation, the disputing parties might explore the problem and suggest some solutions without the help of a third party such as a lawyer, judge or mediator.

For example, negotiation may resolve a situation where “mom,” who has always been a good cook and housekeeper, all of a sudden decides to eat only desserts and stops cleaning her house. Family members may be able to negotiate with mom and reach a mutual decision that she should have a homemaker come to her home for a few hours each day to help her shop for groceries, prepare her meals and clean her home.

If negotiation fails, it is becoming increasingly popular to ask a neutral person to facilitate the negotiation. The neutral person is called a mediator or facilitator. The facilitator or mediator is not a decision-maker; nor does (s)he suggest solutions. Rather, the mediator’s role is to listen to all sides and guide the parties. If the mediator is successful in using problem-solving skills, the parties should be able to resolve the dispute themselves.

The mediation process or alternative dispute resolution (ADR) can be used to resolve concerns that families may have about a family member’s behavior. Using the example above, mom may be unwilling to negotiate with family members about her diet and home maintenance. If she feels outnumbered and intimidated, she may be willing to have the dispute resolved with the assistance of a neutral mediator who will make sure that her side is fairly presented and that the discussion remains friendly and structured.

Ideally, all concerned family members should take part in the mediation. A trained mediator who is also sensitive to the particular needs or disabilities of the elderly should lead the mediation. Someone should tell the mediator if anyone has special needs such as eyesight loss, hearing problems or a limited attention span. Because the process may be intimidating, some or all participants may wish to have an advocate, such as a lawyer or a friend, present to help communicate their viewpoint.

To be effective, ADR participants must be able to:
• understand the mediation process;
• fully participate in the negotiation; and,
• be bound by the final agreement.

Consequently, mediation may not be a guardianship alternative for a person experiencing memory problems. While the individual may be able to participate fully in the negotiation process, (s)he may not remember the final outcome or what (s)he has agreed to. However, when appropriate, mediation as an alternative to guardianship preserves the independence of participants. Mediation also promotes family harmony by forcing family members to work together to find a satisfying solution to a family problem.

If the vulnerable family member is unable to mediate because of incapacity, ADR may still be an option for other family members who cannot agree on how to handle the problem. For example, it is not unusual for children to disagree on a plan of care for a parent who is exhibiting unusual behavior. Family members will be much better off mediating their differences and finding a common solution, rather than spending time and money in court having a judge decide an outcome that may not be acceptable to anyone.