Mediation before litigation

Judges, lawyers and the public are increasingly recognizing the value of mediation as a tool in resolving conflicts, particularly in the area of elder law.

As baby boomers age and require more care, many adult siblings are struggling with questions concerning their parents’ healthcare needs, living arrangements, asset protection and inheritance issues. These family conflicts can often lead to costly, time-consuming legal interventions.

“With one-quarter of our clients requiring litigation last year, nearly 90 percent of those disputes could have been resolved by mediation, reducing the family’s legal fees by about 75 percent while preserving relationships,” said Melissa Negrin-Wiener, an elder law attorney, mediator and partner atCona Elder Law in Melville.

But New York State has been slow to adopt mediation as a tool for settling conflict, according to Harriette Steinberg, elder law mediator and chair of the Nassau County Bar Association’s alternative dispute resolution promotions committee.

“Since we have been using [mediation] in divorce issues and some insurance matters, such as Sandy dispute claims, we are seeing it evolve into the elder law arena,” she said. “But, people are not yet used to thinking of mediation as a tool for conflict in this area.”

Steinberg is hoping this is beginning to change. She is one of three facilitators of a pilot program in Guardianship Court that the Nassau County Bar Association has put together.

“The court will refer cases for mediation so when kids are fighting over who will be mom’s caregiver or manage the money we can work that out instead of having a trial,” Steinberg said. Since the program’s launch in May, only a handful of cases have been referred to mediation.

“But, the fact that three guardianship judges and an administrative judge thought the program had merit and agreed to participate is in and of itself very positive,” she said, noting the Nassau Bar is the first local bar association to establish a mediation panel.

Garden City-based attorney Beth Polner Abrahams is one of the program’s facilitators, as well as co-chair of the New York State Bar Association’s elder law section mediation committee. “We spent almost a year researching what was going on nationally in various states,” she said. “We found mediation in the field of guardianship was received well. Programs that use that throughout the country were very well received.”

At the state level, mediation committee members go into highly populated areas, identify the stakeholders, such as the judges, and determine whether the local bar association or the nonprofit dispute resolution centers will partner with them and local attorneys to express an interest in elder care mediation, Abrahams said.

“The goal is to educate the public, lawyers and judiciary, and to mediate,” she said.

Mediation can be a valuable resolution tool for seniors and their families, Negrin-Wiener said. Cona Elder Law recently had a 63-year-old client bring a guardianship proceeding in court to protect his mother’s financial security. He feared she was spending huge sums on frivolous purchases and would not have enough money left for her living expenses or care, she said. After several months in court and tens of thousands of dollars in legal fees, he was given full transparency of financial statements, but his mother was bitter about being served legal papers.

“We are seeing that a lot of these ‘disagreements’ could be mediated, as opposed to going into litigation, airing your dirty laundry in a courtroom and often destroying the family unit,” she said.

In fact, many times, family conflicts stem more from an old dispute among siblings than their parents’ current care needs, Negrin-Wiener said.

For instance, Steinberg is currently trying to settle one family’s estate issues that go back in time. A dispute about inheritance issues arose among seven siblings after their mother died. In mediation, however, Steinberg discovered the fight developed years prior over who would care for their mom.

“During mom’s lifetime, they didn’t come to mediation,” she said. “They used the courts. There were orders of protection and the hostilities grew and are being played out now in the estate arena.

“As a mediator, I am trying to settle the estate issues but what we’re really talking about is mom’s pre-death care that was never worked out,” Steinberg said.

Rather than seeing mediation used at the time a dispute surfaces, Steinberg hopes people will begin to use it to plan to avoid the dispute.

“It’s a difficult issue – seniors don’t want to address some issues that have to be addressed and children don’t want to recognize the reality of losing parents,” she said.

Mediators are trained as neutral third parties who help families define the issues and reach a mutually agreeable settlement.

“Elder law attorneys can be the best mediators for seniors and their families because they understand the needs and issues and have experience counseling families during traditional elder law discussions,” Negrin-Wiener said.