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By Melissa Negrin-Wiener, Esq. and Lynn Kay, Esq.
There is no debating that the American population is aging at a rapid pace. In fact, by the year 2030, it is estimated that 19 percent of America’s population will be over the age of sixty-five.[i]
With an aging populace, our country has seen an emerging need for qualified professionals to deal with the problems that seniors encounter as part of the aging process as well as the post death needs of the senior’s family. These needs have lead to the development of Elder Law.
Common Elder Law issues include long-term care matters, retirement benefits, estate planning, housing, abuse and neglect of the vulnerable senior, the potential need for guardians, health care, as well as post-death issues relating to probate and estate administration. When a family has a positive relationship and is making decisions together, these difficult issues can be dealt with smoothly and peacefully. However, when family members disagree or their interests are at odds, there is a great deal of opportunity for conflict to arise. During the life of the senior, these types of disputes can lead to contested guardianship proceedings. Post death, disagreements can be the cause of contested estate proceedings. Both of these types of litigation can have catastrophic financial and emotional impacts on a family.
Mediation has emerged as a valuable tool for seniors and their families as an alternative to costly litigation. Mediation can be a useful instrument to prevent post death conflict by dealing with a family’s issues during the senior’s life. However, issues often come to a head when a loved one dies that were never resolved or adequately discussed during the decedent’s lifetime, leading to disputes regarding the decedent’s estate.
There are many different types of estate disputes including outright will contests, contested accountings, or simply a dispute about the meaning of the language contained in a Trust or Will. As many of these disputes are among family members, mediation can be an alternative to court because of a mediator’s exceptional ability to address conflicts while preserving family relationships.
Mediation Models
Mediation is a process by which a neutral third party is present to guide the parties in conflict through a conversation, often with the goal of reaching an agreement or settlement of some kind. A mediator does not make decisions for the parties and has no interest in a particular outcome.
There are a number of different mediation models; however three of the most popular models are the facilitative or problem solving mediation model, the transformative mediation model and the evaluative mediation model. No matter which model is chosen, mediation can be presented to a client as a faster, more cost effective, less antagonistic tool to resolve family and estate related disputes. In fact, it is already heavily utilized in the Court system to address Matrimonial and Family Law disputes.
Facilitative Mediation: Facilitative mediation is a problem solving approach to mediation. The underlying theme of this model is the idea that with the presence of a neutral third party, disputants will be able to reach agreements with respect to their conflicts. The mediator takes a very active role in this process, controlling the agenda, asking questions and laying ground rules for how the mediation sessions will be conducted. The mediator will try to identify and uncover the real issues behind each party’s position and attempt to help the parties generate creative solutions to their mutual problem. Facilitative mediators utilize the caucus (a private and confidential meeting with each party) as a tool for information gathering and a way to seek out party interests.[ii]
Transformative Mediation: An alternative and more recently developed type of mediation practice is transformative mediation. Transformative mediation is based on transforming the quality of the interaction between the parties involved in a particular dispute. The transformative model was first developed by Robert A. Baruch Bush and Joseph P. Folger in “The Promise of Mediation” in 1994.[iii]
Transformative mediators do not drive the process themselves. Instead, the mediators take a back seat to the parties and let the parties themselves dictate the way in which the mediation session is run and what kind of agreement may be reached in the end. The real goal of the transformative mediator is to allow the parties to achieve empowerment and recognition shifts rather than to reach concrete agreements.[iv] Transformative mediation is designed to change the way the parties interact in the hope that it will therefore lead to more sustainable conflict resolution and the improvement of their exchanges in the future.[v] This method is most successful when those involved believe that there is something to be gained by improving their relationship with the other party.[vi] The model is grounded in the idea that when people are involved in a conflict they become weak and self absorbed and, therefore, grow to be hostile to the other party involved which leads to conflict escalation.[vii]
Evaluative Mediation: Evaluative mediation is a much more mediator-directed approach. The mediator is often a subject matter expert and mediates disputes related to said subject. The evaluative mediator will get much more involved in the discussion than either the transformative or facilitative mediator. The evaluative mediator will provide opinions on the strengths and weaknesses of each party’s position and make recommendations or provide insight into what might occur if the matter were to go to court.[viii]
Estate Disputes and Elder Care Conflicts
An article published in the Elder Law Report in 2005 reported that approximately 40 percent of adult children caring for their aging parents experience serious disputes with their siblings regarding such care.[ix] As one would imagine, caring for an aging parent is difficult for many families and emotions often run high. Therefore, the use of a third party to aid in the decision making process is thought to be beneficial.
Guardianships: Some types of issues addressed at Elder Law mediation sessions might include the current and future living arrangements for the senior, health care provisions and help with the activities of daily living, whether or not the senior is still capable of driving, whether and when to sell the senior’s home, end of life care and treatment with respect to terminal illnesses, financial management, guardianship.[x]
There are a great number of decisions that need to be made with respect to the aforementioned care issues and many times the senior’s family members will not agree on the best course of action with respect to one or more of these issues. This is often a result of a disagreement regarding the senior’s capabilities or a situation where one family member bears the burden of providing or financing the caregiver services.
A Guardianship is a court proceeding in which a court makes a determination about whether an Alleged Incapacitated Person (an “AIP”) is in need of an appointed guardian to make decisions regarding their financial affairs and/or personal matters because the AIP is no longer able to do so themselves. Disputes about guardianships can arise in a number of ways. For example, the AIP may vehemently oppose the appointment of a Guardian. Mediation can allow the AIP to voice his or her feelings prior to attendance at a hearing.
Conflicts may also arise between family members who want to be appointed as guardian of the AIP. Many times the dispute is truly about what is best for the AIP but in a great number of cases the dispute stems from something far deeper, such as a lengthy history of sibling rivalry. Mediation can help parties sort through these emotional issues. Mediation can also help parties come to unique solutions regarding the senior’s incapacities.
Inheritance: Inheritance and estate disputes are not always about financial issues. These disputes can encompass a variety of issues: some stemming from individuals’ and society’s views of fairness and what is an appropriate and acceptable distribution of an estate, as well as the grief of the parties involved over the death of a loved one, a lack of communication and problems with the personal representative of the estate or the decedent’s trustee(s).[xi]
Many disagreements grow out of the fact that society generally shares the belief that those in an equal relative relationship to a decedent have an equal claim to the decedent’s estate.[xii] This can present a problem when relationships are hard to define and prioritize due to remarriage and other distinctive situations.[xiii] It can also be difficult for the family caregiver when they receive the same inheritance as those family members who have contributed far less to the decedent’s care.[xiv]
Many people believe decedents should split their estate between those related to them by blood, marriage or adoption. When an individual chooses to deviate from this, those expecting to inherit often become upset.[xv] Conflict can even be the result of a family member’s continuing disapproval of a decedent’s life choices.[xvi] The cause of the conflict may be more about negative feelings and lack of acceptance of a decedent’s choices, which can be brought to light through mediation.[xvii]
When a decedent did not clearly express their wishes while they were alive, those left behind may be surprised by the contents of the decedent’s will which can lead to legal action.[xviii] This lack of communication can also be between surviving relatives of the decedent and the decedent’s chosen fiduciaries causing arguments about the role of the fiduciary and whether they are acting properly.[xix]
Estate attorneys are in the very unique role of being one of the first individuals contacted when a family member dies. Therefore, the estate attorney is in a particularly good position to recommend mediation to families as an option to resolve these estate and inheritance disputes.
Benefits of Mediation
As the field of Elder Law continues to expand, there has been a growing recognition by senior advocate and services groups that elder and estate related disputes are often effectively resolved through the use of mediation.[xx] Evidence of the use of mediation in elder law and estate matters is evident in the abundance of elder training programs conducted around the country. In fact, in recent years, the New York State Bar Association has offered several Elder/Adult Family Mediation Trainings and the New York State Bar Association Alterative Dispute Resolution Section has even put forth a series of white papers on the topic.[xxi]
Disputes relating to probate and long-term care of the elderly are particularly suited to mediation as a means of alternative dispute resolution.[xxii] It has been long recognized that mediation provides “privacy and confidentiality, the promotion of therapeutic effects for the parties, the expanded possibility that an ongoing relationship between parties can be maintained, the potential for creating solutions uniquely suited to the problem at hand, and the possible reduction of financial costs as compared with those incurred in litigation.”[xxiii]
Mediation can help parties understand each other’s views, lead to better communication, and faster solutions.[xxiv] Since probate and elder care disputes are often taking place between family members, mediation is an especially important tool for these types of disputes.[xxv] Mediation is an important alternative to litigation in elder law and estate disputes because it respects family relationships, allows for the airing of personal and often non-legal issues and grievances and is uniquely suited to creating solutions tailored to the particular parties in conflict.
[i] Department of Health and Human Services, Administration on Aging, Aging Statistics, http://www.aoa.gov/Aging_Statistics/
[ii] Diane Levin, Defending the Caucus: The Benefits for Parties in Facilitative Mediation, Mediation Channel, Apr. 1, 2009, http://mediationchannel.com/2009/04/01/defending-the-caucus-the-benefits....
[iii] Transformative Framework, Institute for the Study of Conflict Transformation, Oct. 06, 2009, http://www.hofstralawit.org/transformativemediation/?q=node/6.
[iv] Id.
[v] Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation: The Transformative Approach to Conflict (Jossey-Bass 2005).
[vi] Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition, 95-99 (Jossey-Bass 1994).
[vii] Bush & Folger, The Transformative Approach to Conflict, Supra.
[viii] Katina Foster, A Study in Mediation Styles: A Comparative Analysis of Evaluative and Transformative Styles, Mediate.com, June 2003, http://www.mediate.com/articles/fosterk1.cfm
[ix] Rosemary A. Ziemba, Family Health & Caring for Elderly Parents, Michigan Family Review, Volume 07, Issue 1, Fall 2002, pages 35-52, http://quod.lib.umich.edu/m/mfr/4919087.0007.104/--family-health-caring-....
[x] Susan N. Gary, Mediation and the Elderly: Using Mediation to Resolve Probate Disputes Over Guardianship and Inheritance, 32 Wake Forest L. Rev. 397, 413 (Summer 1997).
[xi] Id at 415-423.
[xii] Id at 418.
[xiii] Id.
[xiv] Id.
[xv] Id at 418-19.
[xvi] Id at 419.
[xvii] Id at 421.
[xviii] Id.
[xix] Id at 423.
[xx] Elder Mediation Resolves Family Conflicts, National Care Planning Council, Nov. 25, 2008, http://www.longtermcarelink.net/article-2008-11-25.htm.
[xxi] The Benefits of Mediation for Dispute Resolution in Elder Law, New York State Bar Association, Alternative Dispute Resolution Section, January 2011.
[xxii] Gary, Supra at 423.
[xxiii] Id at 424.
[xxiv] Id at 428.
[xxv] Id.
