Melissa Negrin-Wiener, Esq.
Alternate Dispute Resolution Mediation is a process designed to bring about agreement or reconciliation between opponents in a dispute. Although the goal is to reach a settlement of some kind, in certain instances, the discussion results in solutions that may or may not be accepted by the contending parties. Mediation involves a neutral individual who guides the parties in conflict through conversation. The mediator does not have an interest in a particular outcome, nor does he or she make any decisions regarding the conflict.
There are a number of different mediation models, the three most popular being transformative mediation, evaluative mediation, and facilitative or problem solving mediation. Regardless of the model, mediation is often a faster, less expensive and less hostile way to resolve family and estate related disputes. Depending on the type of dispute, however, one mediation model may be more appropriate than another. For example, parties involved in conflicts arising in estate disputes and elder care will most often pursue either facilitative mediation or evaluative mediation.
Facilitative mediation requires the mediator to take a very active role in the process. This model uses more of a problem solving approach. The mediator controls the agenda, asks questions, and lays the ground rules for how the mediation sessions will be conducted. The idea behind this approach is that the real issue between the parties is buried underneath the surface problems. It is the mediator’s job to uncover these issues and help the parties reach 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.
Evaluative mediation is the most mediator-directed of the models. The evaluative mediator will get much more involved in the discussion, and in many cases will be an expert on the topic that the conflict is about. 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.
Transformative mediation is the most recently developed of the three models, and it involves changing or transforming the nature of the interaction between the parties involved in a particular dispute. The most successful transformative mediations involve individuals who feel that there is something to be gained from improving their relationship with the other party. This 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 escalation of the conflict. The main focus of this type of mediation is to better the relationship between the parties and not necessarily reach a solid agreement. As one would imagine, caring for an aging or disabled loved one 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. Transformative mediation may leave too much up to the parties when they are entrenched in painful familial conflict.
Some conflicts that may arise between parties caring for an aging or disabled loved one might include financial decisions, health care decisions, living arrangements, end of life decisions and guardianship. Many times these types of disputes result in one family member taking on the burden of the care, which can lead them to resent the other family members.
From time to time, conflicts will arise between the aging or disabled individual and the caretaker. Mediation can allow the individual being cared for to voice his or her feelings in a safe and controlled environment.
Conflicts may also arise between family members who want to be appointed as guardian of their aging or disabled loved one. Sometimes 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 their loved one’s incapacities.
Some conflicts that may arise between family members when an individual passes away include, type of burial, distribution of assets, prior gifting and treatment of second marriages. Many of these disputes have nothing to do with the deceased individual, but instead are directly related to the poor relationship between the parties. Many people believe decedents should split their estate between those related to them Melissa Negrin-Wiener Elder Care and Estate Conflicts: Which Mediation Model is Best? by blood, marriage or adoption. When an individual chooses to deviate from this, those expecting to inherit often become upset especially when these wishes were not clearly expressed during lifetime. 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. Disputes relating to estate proceedings and long term care of the elderly are particularly suited to mediation as a means of alternative dispute resolution. 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.”
Mediation can help parties understand each other’s views, lead to better communication, and faster solutions. This is key when the parties involved in the conflict are family members who hope to maintain a continuing relationship. 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.
Melissa Negrin-Wiener is a Partner at the Elder Law and Estate Planning firm of Cona Elder Law in Melville, and is currently the President of the Suffolk County Women’s Bar Association. 1. Diane Levin, Defending the Caucus: The Benefits for Parties in Facilitative Mediation, Mediation Channel, Apr. 1, 2009, http://tinyurl. com/Levin04-01-2009. 2. Katina Foster, A Study in Mediation