Elder Care Mediation Series, Part 1: What Is It?

A Guardianship and Elder Care Mediator

Contested guardianship cases, like contested divorces, are often lose-lose encounters. Though someone will eventually emerge the “winner” by judicial decree, the emotional and financial cost to both sides often renders it a Phyrric victory. The battle only deepens the wounds which kindled the contest, and there is even less chance for healing them afterward. There is no coming back from that and chances of reconciliation afterward is often nil. At best, the parties share an uneasy coexistence because of people of mutual concern, i.e., the incapacitated person or minor children of the marriage, respectively. But, likely, even that tenuous relationship will snap when the thread holding them together (the ward) dies.

As a certified elder care mediator, I believe that mediation provides an ideal opportunity for the parties to air their differences, feelings, opinions, perceived slights, etc., giving the parties the opportunity to hear, consider and respond to all perspectives and possibly change their own position accordingly. This could result in a measurable reduction in the inefficient use of court resources.

Elder care mediation is a voluntary and confidential discussion between the parties with the aim of resolving the conflict between them. The mediator’s role is to facilitate that discussion. The mediator has no power to decide the facts or issues, unlike a judge, arbitrator or early neutral evaluator. But neither is it therapy. Since mediation is confidential, the parties agree that the mediator cannot be subpoenaed to testify on anyone’s behalf. The parties also agree not to divulge or voluntarily testify about anything said during the course of the mediation. The mediator collects and destroys all notes taken during the mediation including the mediator’s own notes. Moreover, most courts prohibit statements made during settlement negotiations from being introduced into evidence.

The mediation session is held in a neutral setting (my office). Most parties prefer to have the mediator meet privately with each party in what is known as a caucus. The contents of a caucus are confidential between the mediator and that party unless and until that party authorizes the mediator to divulge what was said. Of course, the other parties are entitled to equal time in caucus with the mediator at the parties’ own discretion. A mediation session can last anywhere from one to several hours. A mediation session terminates when the parties reach an agreement, or when either party wishes to terminate. Bear in mind, since mediation is voluntary there is little point in trying to mediate if the parties do not in good faith desire to resolve their differences. An agreement may be oral or written.

While attorneys are welcome to participate in the mediation session, they should remember that the purpose of mediation is candid discussion among the parties; mediation is not the proper forum for the attorney to advocate his or her client’s case. Additionally, it is submitted that mediation will not diminish an attorney’s net fees in a given matter. Legal fees are determined by the court and do not usually equate to full payment at the attorney’s usual hourly rate, particularly where, as is often the case, the estate is not large. A mediated solution may well result in less uncompensated or under-compensated attorney time.

Mediation can be useful in any conflict where the parties are willing to enter into a good faith discussion to resolve their dispute. A contested guardianship petition is just one area of Elder Law where mediation is valuable. If interested persons believe an already-appointed gua