Mediation Is An Effective Tool For Elder Family Issues
About a year ago, an attorney colleague in New Jersey, Shirley Whitenack, Esq., authored an article on elder families and mediation that caught my attention. The article, “Mediation: A Possible Option for the Dispute Involving Your Client,” was published in NAELA News, a publication of the National Academy of Elder Law Attorneys to which I belong. When families are warring over who cares for Mom or where parents should live when they cannot live at home and are unable to make choices for themselves, or who pays for what, mediation as an alternative might not be one that immediately spring to mind but maybe it should be.
Divorce mediation, long considered to be an alternative to lengthy expensive divorce actions, can also be used in other contexts, notably where there is a dispute among adult children regarding frail, disabled and incapacitated parents. If there is anything that brings out old family conflicts like care for, abuse of, and costs relating to elderly parents, I do not know what it is – unless it is estates.
While mediation might not be the first remedy, it can be useful as one additional tool. Frankly, much of what good family lawyers do when dealing with a family could probably be considered family mediation or family counseling anyway but formal mediation takes it one step further.
Where a parent is present and able to act it is the duty of her or his attorney under the Rules of Professional Conduct to conduct business with the parent under as normal circumstances as possible. This would also include the duty of the attorney to preserve confidentiality regarding her or his elderly client. If the parent chooses to deal with one or more family members primarily or exclusively, it is her or his choice. However, a good elder law attorney will try to understand the family dynamics and ask questions to understand what is happening for the benefit of the client and to assure there is not abuse or overreaching. Sometimes family members honestly do not know what actions may be taken and what actions should not be taken under a power of attorney, for instance.
If a parent and the parent’s spouse are both so incapacitated they cannot act, often family law and elder law attorneys are approached by family members for help. Where everyone agrees to a solution, this is simply a matter of putting together a plan and implementing it with an appropriate written Family Agreement. This writing can assure fairness and understanding for everyone and often compensation for family caregivers without fear of Medicaid gifting penalties. If you have kids you want to get full custody of after the divorce, you may need to hire a child custody lawyer.
Where there is serious disagreement, different roads might be taken. One of these could be mediation.
Ms. Whitenack’s article described circumstances where mediation might be appropriate and successful and where it likely would not be. Here is what she said:
“Mediation is appropriate and often successful in matters where:
- The parties have or have had an ongoing personal relationship and have communication problems,
- The primary barriers to settlement are personal or emotional,
- The parties want creative solutions to suit their particular means,
- There is an incentive to settle because of time or cost of litigation, or
- The parties want a confidential forum to resolve their dispute…”
“Mediation is not appropriate, however, when:
- There are allegations of domestic abuse,
- Substance abuse,
- Emergencies, or matters involving extremely hostile or volatile participants.”
Opposing family members may be represented by counsel in a mediation. Interested parties should be present. The process is normally confidential and parties are encouraged to speak freely.
The benefit of mediation as described by Ms. Whitenack’s article include involvement of an unbiased party, the opportunity for the parties to vent regarding their viewpoints, and the opportunity to realistically evaluate the strengths and weaknesses of different positions.
An incapacitated person may be able to participate through a guardian ad litem, that is an attorney whose purpose is to represent the interests of the party through the proceeding. Mediation could be considered even after a petition for guardianship has been filed. At its conclusion there should be a written settlement agreement.
While mediation has received its reputation mostly through divorce proceedings, family is just as involved in issues involving incapacitated seniors and it deserves consideration in the right case.
About the Author Janet Colliton
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.