ESTATE AND ELDER MEDIATION Presented by Donald D. Vanarelli, Esq. Certified Elder Law Attorney...

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

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

Housing/living arrangements Caregiving Healthcare planning Financial management Estate planning & probate matters Medical treatment Guardianship/Conservatorship

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

Consumer issues Social life and activities Spirituality and aging Ongoing relationships Family 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

Courtesy of Elder Decisions/Agreement Resources, LLCPh.: 617-621-7009www.Elderdecisions.com

http://www.elderdecisions.com/

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



Presenting Issues in Elder Presenting Issues in Elder MediationMediation

• Often triggered by current or anticipated changes in the circumstances of the elder, such as:

Death of spouse

Physical, emotional, or mental decline

Financial concerns

• Health and safety concerns - Independence and self-determination vs. safety



Presenting Issues in Elder Presenting Issues in Elder Mediation (cont.)Mediation (cont.)

• Second marriage or partner issues

• Caregiver issues and “swooping”

• Powers of attorney – who makes what decisions

• Residence and long-term care decisions

• Financial planning and tax issues

• Estate planning



Presenting Issues in Elder Presenting Issues in Elder Mediation (cont.)Mediation (cont.)

• Considering selling the house and/or other valuable assets

• Inheritance disputes

• Medical treatment decisions and health care proxies

• Adult guardianship and less restrictive alternatives

• Post-appointment decisions (guardianship)



Some Mediator Challenges:Some Mediator Challenges:Family DynamicsFamily Dynamics

• Emotions

• Myths

• Superstitions

• Closely held prejudices

• Entrenched relationships

• Complicated role reversal

• Passivity



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.

Standards of CapacityStandards of Capacity

Testamentary Capacity - testator must Testamentary Capacity - testator must recognize the natural objects of his recognize the natural objects of his bounty and the nature and extent of his bounty and the nature and extent of his estate on the date of will execution.estate on the date of will execution.

Contractual Capacity - contractor must Contractual Capacity - contractor must understand the nature of the transaction understand the nature of the transaction and consequences of his acts.and consequences of his acts.

Standards of CapacityStandards of Capacity

Donative Capacity - donor must Donative Capacity - donor must understand the nature and effect of the understand the nature and effect of the transaction.transaction.

Trust Capacity - grantor must have the Trust Capacity - grantor must have the capacity to contract and to donate capacity to contract and to donate property.property.

Power of Attorney/Living Will Capacity - Power of Attorney/Living Will Capacity - requires the capacity to contract.requires the capacity to contract.

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



When Senior (or Another Party) When Senior (or Another Party) Requires an AdvocateRequires an Advocate

Uphold self-determination and informed consent when:

- Adjudicated incompetent

- Extreme dementia diagnosed or suspected

- Evidence of alcoholism or severe depression

- Other serious health or capacity issues



When Senior Does Not Directly When Senior Does Not Directly ParticipateParticipate

• Uphold voluntary nature of mediation (Senior does not choose to participate)

• When siblings don’t want senior involvedNote: Some mediators will only move

forward ifthe issue does not directly affect the senior Ask – What are the risks of the process

doingharm?

• Use of surrogate or advocate



Obstacles to Including Obstacles to Including Participants Participants

in the Mediationin the Mediation• Sibling with parents’ power of attorney may

feel no need to negotiate• No obvious deadlines or pending court dates• Multiple stakeholders and constituencies• Inertia or resistance to change

- Leads to crisis mode decision-making

- Delays decrease options and increase costs

- Can put health and safety of senior at risk



Obstacles to Including Obstacles to Including Participants Participants

in the Mediation (cont.)in the Mediation (cont.)

• Being overwhelmed by multiple issues

• Family history and past relationship patterns – “I just can’t talk to him about anything. I never could.”

• Fear of emotions surfacing during mediation – “opening a can of worms”

• Cost of mediation

• Misconceptions about the process



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 ProcessThe Elder Mediation Process (cont.)(cont.)

Stage II – Initiation of the Process

1. Mediator’s Opening Statement.

2. Participant’s Opening Statements.

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

Mediator Skill SetMediator Skill Set

• Listening and communication: mediator must be cognizant of the constant exchange of messages (verbal and non-verbal) which take place during a mediation session• Active and Interactive Listening Modes• Mediator must listen to the two parts

of the message: Content/Substantive part + Affective/Feeling part

Mediator Skill Set (cont.)Mediator Skill Set (cont.)

• Empathy• Mediator must be nonjudgmental: it is

critical to listen in an objective fashion• Mediator remembers that people are

motivated by needs; ascertaining these needs is a part of the mediator’s role and skill

• Understanding of the law and awareness of options is key to moving the parties toward resolution

• Above all, PATIENCE (allow the process to work)

Mediating Guardianship Mediating Guardianship Cases:Cases:

The NuancesThe Nuances• Two distinct issues at hand: question of

capacity (whether a guardian should be appointed) and question of who should be appointed and the plan of care

• Broad spectrum of capacity: many gray areas

• Extent to which the alleged incapacitated person (AIP) participates in the mediation

• Role of counsel for AIP: Matter of M.R.• Potential role of GAL (“patently absurd” or

“undue risk of harm”)

Guardianship Nuances (cont.)Guardianship Nuances (cont.)

• Notion of “least restrictive alternatives” (i.e. conservatorship, limited guardianship, etc.)• Multiple parties• Sudden conflict (loss of capacity of a

loved one) with very little, if any, prior planning by the family• Fertile ground for reassertion of old

family conflicts (conflict can be highly emotional)

Guardianship Nuances (cont.)Guardianship Nuances (cont.)

• Source of conflict may be from parties simply not knowing what to do; triggering need for option generation and use of the “neutral expert”• Start with development of care plan

and move backwards to the choice of surrogate• Attorneys’ Fees (Fund in Court Rule

and new Rules 4:42-9(a)(3)/4:86-4(e))

Mediating Probate Cases: Mediating Probate Cases: The Nuances The Nuances

• Often multiple parties• Sudden conflict (i.e. unexpected death of a

loved one or revelation of a previously unknown will)

• Parties often represented by counsel and arrive at mediation table after a lawsuit is filed

• Defining the estate (assets and liabilities); valuation of assets

Probate Nuances (cont.)Probate Nuances (cont.)• Unique legal issues

–Undue influence and presumptions (case law)–Breach of fiduciary duty–Capacity to make a will vs. global mental incapacity–Attorneys’ Fees (“Fund in Court” and new probate rules)–Law of intestacy–Effect of declaring will invalid (does it reinstate a previous will or intestate estate?)

Probate Nuances (cont.)Probate Nuances (cont.)

• Equitable remedies are broad (whatever the judge thinks is fair); consequently trying to anticipate how a case might be ruled on by the court can be very difficult

• Dealing with “minor” interests (do you need a guardian ad litem appointed?)

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



New “Ethical Model” of MediationNew “Ethical Model” of Mediation

• It is the role of the mediator to guide the parties towards a “Principled Resolution”

• A Principled Resolution is one based upon the ethical principles of: Autonomy, Beneficence, Do No Harm, Fidelity and Fairness to All

• Although the “ethical model” may be applicable to all types of mediations, it may be especially important when working with elderly or disabled individuals

Ethical Model (cont.)Ethical Model (cont.)

• Autonomy: the notion that every party has a voice in the process and parties not coerced; notion of “free will” in parties arriving at a resolution

• Beneficence: the notion that the parties are working towards a helpful and good resolution

• Do No Harm: the notion that parties will not be worse off as a result of the mediation and resolution

• Fidelity: the notion that the mediator is faithful to parties, the ethical principles and to the process

• Fairness to All: the notion that the parties have equal opportunity to participate in the process 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.

Questions / Comments?Questions / Comments?

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