My Brother Is A Nut Case, or Can A Mentally Impaired Person Go to Mediation?

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By Carolyn L. Rosenblatt, R.N., B.S.N., Attorney

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Here’s a recurring theme: a mentally disabled family member is involved in an elderly parent’s care. Elderly parent declines, and needs to go to a facility. Mentally impaired adult child has been living in elderly parent’s home all this time, maybe years. Parent has to sell or rent home to pay for facility care. All hell breaks loose.

While one might think of this as rare, our experience tells us it is more common than you’d think. Perhaps when parents have a child who turns out to have mental disability, the parent wants to protect the child.

So, the adult child lives at parent’s home, or never leaves home. A co-dependency develops and grows. Usually, it’s the mom who does this “protecting” of the impaired offspring. As mom ages, the adult child does some caregiving. With impairments, it’s not always the best quality of caregiving, but it’s usually unpaid.

Siblings are the ones to say mom needs to go to assisted living, or a nursing home for care. Maybe the doctor says it, or a nurse, or even the local authorities, adult protective services or equivalent. Impaired sibling fights it, strongly. Family fight breaks out.

Can mediation work in such an instance to help resolve the family fight?

It depends on the degree of impairment of the mentally impaired sibling. Our experience in elder mediation with adult children who suffer from mental health issues is that the impairment is too great for mediation to work very well. The same is true for mentally impaired elders.

The process of mediation involves making decisions, reasoning, exploring choices. While it is true that emotion is nearly always a factor, sometimes a huge factor, it is not necessarily a fatal flaw in a mediation.

However, mental impairment in a participant can be a fatal flaw. The elements of these impairments get in the way of decision-making and considering how to resolve a dispute to the extent that efforts at resolution can be destroyed. An impaired adult child can’t focus on what is best for the elderly parent.

We have had the experience of mediating cases with both mentally impaired adult children in some matters and mentally impaired elders in others. We’re not talking about dementia here. Dementias, including Alzheimer’s are the subject of another article in this blog. We’re talking about other, chronic mental health impairments.

Our experience tells us that when a mentally impaired person tries to participate in mediation, depending on the degree of illness, the mediation is likely to fail. We presume that this because the impairment makes it too difficult to either make decisions or to keep agreements, even if they are made in mediation.

So, if your brother is “a nut case” (mentally impaired), don’t expect him to be a likely candidate for making or keeping agreements at a mediation. You need certain basics for the process to work. One of those basics is a person who is capable of reaching agreements. Sometimes, a mentally impaired person’s symptoms can make it impossible for him or her to stick to a settlement agreement, even if you get that far at mediation.

Certain good things can happen when people do sit down together to try to work out a conflict with the leadership of a skilled mediator. But it’s not a magic pill that can make mental health issues go away, or cause a truly impaired person to act normally.

Sometimes, we don’t know how impaired a person is, exactly. Many people with mental health issues can function fairly well in the world, despite their problems, especially if they’re willing to take medication and keep their symptoms under control. For these folks, mediation can still work.

But for those who don’t recognize their own mental impairments, and don’t treat them, we can not recommend mediation for family conflicts. The symptoms will surely come out in what can be a confrontational situation, however controlled, and the outcome is not likely to be successful.

Last Updated ( Tuesday, 17 August 2010 15:50 )

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