General and Specialized Mediation

1. ESTATE AND ELDER MEDIATION Presented by Donald D. Vanarelli, Esq. Certified Elder Law AttorneyAccredited Professional MediatorCo-Founder, Elder Mediation Center of N.J. 2007 and 2008 NJ “Super Lawyer” in Elder Law and Estate Planning

2. “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

3. General and Specialized 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.

4. 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.

5. Mediation Compared With OtherConflict Resolution Methods

6. Negotiation • 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.

7. Mediation • 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.

8. Arbitration • 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.

9. Litigation • 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.

10. Benefits 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.

11. 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.

12. Benefits of Mediation (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.

13. What is “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.

14. Goals 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.

15. Goals of 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.

16. Goals of Elder Mediation (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.

17. Overview of Issues 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

18. Overview of Issues in Elder Mediation (cont.) • Consumer issues • Social life and activities • Spirituality and aging • Ongoing relationships • Family wealth issues

19. Most 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.

20. Most Common Issues (cont.) • Family wealth issues: Inheritance disputes and estate planning issues. • Medical treatment decisions. • Guardianship and post-appointment issues. • Caregiving role reversal.

21. Characteristics of Elder Mediation • 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

22. Characteristics of Elder Mediation (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

23. Characteristics of Elder Mediation (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

24. Who Should Attend the Mediation? • The senior(s) • Adult siblings • Spouses • Grandchildren • Concerned friends • Caregivers • Pets • Advocates or advisors: friend, geriatric care manager (GCM), lawyer, CPA/financial planner

25. Exploring 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.

26. Capacity 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

27. The Elder Mediation Process • The elder mediation process proceeds in four stages: • Stage I – Preparing for Mediation • Recognizing the Problem. • Choosing the arena – mediation, arbitration or litigation. Determine whether the case is appropriate for mediation. • Selecting the mediator. • 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

28. The Elder Mediation Process(cont.) • Stage II – Initiation of the Process • Mediator’s Opening Statement. • Participant’s Opening Statements.

29. The Elder Mediation Process (cont.) • Stage III – The Heart of the Process • Fact Gathering and Issue Identification • Define Common Issues • Joint Discussion • Developing Options – Brainstorming • Bargaining • Caucus or Private Meeting

30. The Elder Mediation Process (cont.) Stage IV – Resolution 1. Settlement 2. Drafting the Agreement -Reflects all agreements reached in mediation -Reviewed by the parties’ attorneys

31. Issue Identification and 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

32. 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.

33. 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.

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

35. 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.

36. The 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

37. Defining 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

38. Our Mission Statement: The Ethical Approach 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.

39. THANK YOU FOR ATTENDING. Questions / Comments? PLEASE COMPLETE THE WORKSHOP SATISFACTION SURVEY