ESTATE AND ELDER MEDIATION ESTATE AND ELDER MEDIATION

Presented by Presented by Donald D. Vanarelli, Esq.Donald D. Vanarelli, Esq.

Certified Elder Law Attorney Certified Elder Law AttorneyAccredited Professional MediatorAccredited Professional Mediator

Co-Founder, Elder Mediation Center of Co-Founder, Elder Mediation Center of N.J. N.J.

2007 and 2008 NJ “Super Lawyer” 2007 and 2008 NJ “Super Lawyer” in Elder Law and Estate Planningin Elder Law and Estate Planning

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser…in fees, expenses and waste of time.”

Abraham Lincoln

1850

General and General and Specialized MediationSpecialized Mediation

There are general rules of mediation, and specialized aspects that apply to different contexts. This presentation gives an overview of mediation in general, and then focuses on the specialized mediation practice known as Elder Mediation.

What is Mediation?What is Mediation?Mediation is a process in which an impartial third party – a mediator – facilitates the resolution of a dispute by promoting voluntary agreement (or “self-determination”) by the parties to the dispute. A mediator facilitates communications, promotes understanding, focuses the parties on their interests, and seeks creative problem-solving to enable the parties to reach their own agreement.

Mediation Compared With OtherMediation Compared With OtherConflict Resolution MethodsConflict Resolution Methods

NegotiationNegotiation

MediationMediation

Private; Less Costly; Faster; Private; Less Costly; Faster; Voluntary; Parties Free to Voluntary; Parties Free to Innovate; Parties Retain Control Innovate; Parties Retain Control of Process; Helps the Parties to of Process; Helps the Parties to Maintain RelationshipsMaintain Relationships

ArbitrationArbitration

LitigationLitigation

Public; Expensive; Much Slower; Public; Expensive; Much Slower; Involuntary; Solutions Imposed Involuntary; Solutions Imposed by Arbitrator, Jury or Judge; by Arbitrator, Jury or Judge; Parties Abdicate Control; Parties Abdicate Control; Destroys RelationshipsDestroys Relationships

NegotiationNegotiation

• The disputing parties agree to talk to each other about their problems and try to reach a solution that is acceptable. No third party participation.

• Polarization makes the process difficult to initiate; the parties are often unable to overcome impasse.

MediationMediation

• An impartial third party not involved in the dispute helps the parties resolve their differences.

• Mediator is a manager of the parties’ negotiations who organizes the discussion of the issues to be resolved.

• Mediator does not render a decision, express an opinion about or evaluate the case for the parties.

ArbitrationArbitration

•A third party, selected by the parties, makes a binding decision for the parties which is not appealable.

•Informal, less expensive and faster than a judicial proceeding.

LitigationLitigation

• Judge or jury renders a decision on all issues in dispute after a trial.

• The Court controls the process.

• Court proceedings are public, costly and time-consuming.

Benefits of MediationBenefits of Mediation• AFFORDABILITY: Mediation services are

typically much less expensive than other conflict resolution methods.

• TIMELINES: Mediation cases are usually resolved in an expedited manner.

• CONVENIENCE: Mediation cases do not present the logistical problems found in other methods of conflict resolution.

Benefits of Mediation (cont.) Benefits of Mediation (cont.)

•UNDERSTANDABILITY: Mediators are trained to set the participants at ease, to explain the mediation process and the mediator’s role in the process.

•PRIVACY: Mediation sessions are held in private so that the parties’ grievances or complaints are never made public.

Benefits of Mediation Benefits of Mediation (cont.)(cont.)

• EFFECTIVENESS: Nationally, the parties reach agreement in 75% to 90% of mediated cases.

• SATISFACTION: Participants report a high degree of satisfaction with the process and the results. The parties maintain control over the outcome.

What is What is “Elder Mediation”? “Elder Mediation”?

Elder mediation is mediation of any conflict that involves elders, their family members, or others in their lives. The individual who first contacts the mediator may be, but often is not, the elder involved.

Goals of Elder MediationGoals of Elder Mediation

Elder Mediation provides a forum for family decision-making to achieve the following goals:

• To hear the concerns of the elder adult, the service provider or the family, and to develop a plan that will address those concerns in the most positive and practical way.

Goals of Goals of Elder Mediation (cont.)Elder Mediation (cont.)

•To provide a forum for siblings to discuss how they will share the responsibilities for care of their parents. Mediation can help families discuss the division of labor and the management of finances.

Goals of Elder Mediation Goals of Elder Mediation (cont.)(cont.)

• To allow families to create workable and mutually acceptable solutions to their difficult disputes.• To develop communication strategies to enable families of elders to successfully work together to make important decisions in the future.• To avoid litigation of family disputes that have reached the point where court proceedings have begun or have been threatened.

Overview of Issues Overview of Issues in Elder Mediationin Elder Mediation

The elder mediator is familiar with and capable of dealing with a variety of issues, including:

Housing/living arrangementsCaregivingHealthcare planningFinancial managementEstate planning & probate mattersMedical treatmentGuardianship/Conservatorship

Overview of Issues Overview of Issues in Elder Mediation (cont.)in Elder Mediation (cont.)

Consumer issuesSocial life and activitiesSpirituality and agingOngoing relationshipsFamily wealth issues

Most Common IssuesMost Common Issues

•Disputes among adult siblings about parents.

•Financial decisions: How money will be spent or invested and who will be involved.

•Residence decisions.

•Family business issues

•Family wealth issues: Selling the family home or other valuable assets.

Most Common Issues (cont.)Most Common Issues (cont.)

•Family wealth issues: Inheritance disputes and estate planning issues.

•Medical treatment decisions.

•Guardianship and post-appointment issues.

•Caregiving role reversal.

Characteristics of Elder Characteristics of Elder MediationMediation

•Rarely only one issue involved

•Usually multi-party

•Mediator concern for wellbeing of elder

- Focus on self-determination and informed consent

- Preserving the elder’s autonomy

Characteristics of Elder Mediation Characteristics of Elder Mediation (cont.)(cont.)

• Relationships continue into the future

• Relationships affect others in the family (nieces, nephews, grandchildren, spouses, etc.)

• Mediation often not an “end point” – ongoing decisions will follow

- If elder stays at home:

• Home services, caregiving, bill paying, driving/transportation

Characteristics of Elder Mediation Characteristics of Elder Mediation (cont.)(cont.)

- If elder moves to assisted living facility or nursing home:

• How to pay?

• Choosing a facility

• Interacting with the facility administration

- Eventually end-of-life, burial and funeral decisions

Who Should Attend the Who Should Attend the Mediation?Mediation?

• The senior(s)

• Adult siblings

• Spouses

• Grandchildren

• Concerned friends

• Caregivers

• Pets

• Advocates or advisors: friend, geriatric care manager (GCM), lawyer, CPA/financial planner

Exploring CapacityExploring Capacity

• Capacity – a critical threshold issue

• Capacity vs. competency

• Consider room for participation even if there is diminished capacity from a medical or legal perspective.

• Ask: What are the risks of the process doing harm?

• Do we define mediation as a “negotiation” or a “conversation”? – The capacity to reach an agreement is different from the capacity to have a conversation.

Capacity AssessmentCapacity Assessment

• Assume capacity first

• Evaluate capacity by assessing each party’s:

- Understanding and description of problem

- Memory

- Reasoning

- Ability to follow conversation

- Responses to questions

• Don’t judge/make assumptions about anyone before talking with them

The Elder Mediation The Elder Mediation ProcessProcess

The elder mediation process proceeds in four stages:

Stage I – Preparing for Mediation

1. Recognizing the Problem.

2. Choosing the arena – mediation, arbitration or litigation. Determine whether the case is appropriate for mediation.

3. Selecting the mediator.

4. Intake –

Pre-mediation interviews of the parties to determine:

- Which persons should attend the mediation

- Whether all parties are capable of participating

- Involvement of geriatric care manager for assessment and evaluation

The Elder Mediation The Elder Mediation ProcessProcess (cont.)(cont.)

Stage II – Initiation of the Process

1. Mediator’s Opening Statement.

2. Participant’s Opening Statements.

The Elder Mediation The Elder Mediation Process (cont.)Process (cont.)

Stage III – The Heart of the Process

1. Fact Gathering and Issue Identification

2. Define Common Issues

3. Joint Discussion

4. Developing Options – Brainstorming

5. Bargaining

6. Caucus or Private Meeting

The Elder Mediation Process The Elder Mediation Process (cont.)(cont.)

Stage IV – Resolution

1. Settlement

2. Drafting the Agreement

-Reflects all agreements reached in mediation

-Reviewed by the parties’ attorneys

Issue Identification Issue Identification and Fact Gatheringand Fact Gathering

•Each party gives his or her version of the problems at issue without interruption

•Mediator gives a summary of each party’s concerns after the party has spoken

•After all have spoken, the mediator attempts to identify the common issues presented

Joint Discussion Joint Discussion

•Allows the parties to express their feelings and

emotions to each other in a productive and

positive manner.

•Allows each party to direct questions to and

answer questions from the other party(ies).

•Fills in information gaps. Provides data useful to

problem resolution.

•Allows the mediator an opportunity to hear each

party and observe the parties’ interactions.

Generating Options Generating Options • Allows the parties to explore solutions which are

mutually acceptable.

• Allows the parties to “brainstorm” – generate options

to create their own solution, rather than have a

decision imposed by a third party.

• Allows the parties to retain control.

• Allows the parties to move away from their original

positions and focus on solutions.

• No party needs to commit to the options presented.

BargainingBargaining

The goal of the mediation process is for the parties, with the aid of the mediator, to structure mutually acceptable solutions.

Settlement Agreement Settlement Agreement

•Not all mediations warrant a written settlement

agreement.

•Success in mediation is sometimes intangible

(without a written agreement).

•Written agreements should be specific:

WHO, WHAT, WHEN, WHERE, AND HOW.

•Reality test or “road test” the written agreement.

The Process: 3 ThoughtsThe Process: 3 Thoughts

•The process is designed to be flexible (parties may not proceed through every stage and stages overlap)

•The mediator is in control of the “process”; the parties are in control of the content of the mediation, and the resolution.

•It is the act of engaging in the elder mediation process that may lead the parties to resolution

Defining SuccessDefining Success

• Giving aging parents and other family members a voice even if they lack legal rights

• Helping families to create successful communication systems for the future

• Resolving some issues in mediation, anticipating that the family will continue to work as a team

• Providing a safe space for people to hear each other, to voice their interests, feelings, and to be heard

Our Mission Statement: The Ethical Our Mission Statement: The Ethical Approach to Elder MediationApproach to Elder Mediation

The Elder Mediation Center of New Jersey approaches dispute resolution based upon ethical principles: the recognition that the elder or disabled family member, who is often at the center of the conflict, is the most important participant; our core belief that the voice of the elderly or disabled person must be heard and respected if the conflict is to be resolved; the role of beneficence, or the commitment to do no harm in the process; the commitment to fidelity and faithfulness to clients and the process, which encourages family members to achieve creative solutions best suited for them; and respect of, and fairness to, all parties.

THANK YOU FOR ATTENDING.THANK YOU FOR ATTENDING.

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