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 • Courtesy of Elder Decisions/Agreement Resources, LLC • Ph.: 617-621-7009 • www.Elderdecisions.com

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 • Courtesy of Elder Decisions/Agreement Resources, LLC • Ph.: 617-621-7009 • www.Elderdecisions.com

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 Courtesy of Elder Decisions/Agreement Resources, LLC Ph.: 617-621-7009 www.Elderdecisions.com

24. Presenting Issues in Elder Mediation • Often triggered by current or anticipated changes in the circumstances of the elder, such as: • Death of spouse • Physical, emotional, or mental decline • Financial concerns • Health and safety concerns - Independence and self-determination vs. safety • Courtesy of Elder Decisions/Agreement Resources, LLC • Ph.: 617-621-7009 • www.Elderdecisions.com

25. Presenting Issues in Elder Mediation (cont.) • Second marriage or partner issues • Caregiver issues and “swooping” • Powers of attorney – who makes what decisions • Residence and long-term care decisions • Financial planning and tax issues • Estate planning • Courtesy of Elder Decisions/Agreement Resources, LLC • Ph.: 617-621-7009 • www.Elderdecisions.com

26. Presenting Issues in Elder Mediation (cont.) • Considering selling the house and/or other valuable assets • Inheritance disputes • Medical treatment decisions and health care proxies • Adult guardianship and less restrictive alternatives • Post-appointment decisions (guardianship) • Courtesy of Elder Decisions/Agreement Resources, LLC • Ph.: 617-621-7009 • www.Elderdecisions.com

27. Some Mediator Challenges:Family Dynamics • Emotions • Myths • Superstitions • Closely held prejudices • Entrenched relationships • Complicated role reversal • Passivity • Courtesy of Elder Decisions/Agreement Resources, LLC • Ph.: 617-621-7009 • www.Elderdecisions.com

28. 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 • Courtesy of Elder Decisions/Agreement Resources, LLC • Ph.: 617-621-7009 • www.Elderdecisions.com

29. 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.

30. Standards of Capacity • Testamentary Capacity - testator must recognize the natural objects of his bounty and the nature and extent of his estate on the date of will execution. • Contractual Capacity - contractor must understand the nature of the transaction and consequences of his acts.

31. Standards of Capacity • Donative Capacity - donor must understand the nature and effect of the transaction. • Trust Capacity - grantor must have the capacity to contract and to donate property. • Power of Attorney/Living Will Capacity - requires the capacity to contract.

32. 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 • Courtesy of Elder Decisions/Agreement Resources, LLC • Ph.: 617-621-7009 • www.Elderdecisions.com

33. When Senior (or Another Party) Requires an Advocate Uphold self-determination and informed consent when: - Adjudicated incompetent - Extreme dementia diagnosed or suspected - Evidence of alcoholism or severe depression - Other serious health or capacity issues Courtesy of Elder Decisions/Agreement Resources, LLC Ph.: 617-621-7009 www.Elderdecisions.com

34. When Senior Does Not Directly Participate • Uphold voluntary nature of mediation (Senior does not choose to participate) • When siblings don’t want senior involved • Note: Some mediators will only move forward if • the issue does not directly affect the senior • Ask – What are the risks of the process doing • harm? • Use of surrogate or advocate • Courtesy of Elder Decisions/Agreement Resources, LLC • Ph.: 617-621-7009 • www.Elderdecisions.com

35. Obstacles to Including Participants in the Mediation • Sibling with parents’ power of attorney may feel no need to negotiate • No obvious deadlines or pending court dates • Multiple stakeholders and constituencies • Inertia or resistance to change • - Leads to crisis mode decision-making • - Delays decrease options and increase costs • - Can put health and safety of senior at risk • Courtesy of Elder Decisions/Agreement Resources, LLC • Ph.: 617-621-7009 • www.Elderdecisions.com

36. Obstacles to Including Participants in the Mediation (cont.) • Being overwhelmed by multiple issues • Family history and past relationship patterns – “I just can’t talk to him about anything. I never could.” • Fear of emotions surfacing during mediation – “opening a can of worms” • Cost of mediation • Misconceptions about the process • Courtesy of Elder Decisions/Agreement Resources, LLC • Ph.: 617-621-7009 • www.Elderdecisions.com

37. 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.

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

39. 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

40. 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

41. 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

42. 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.

43. 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.

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

45. 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.

46. 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

47. Mediator Skill Set • Listening and communication: mediator must be cognizant of the constant exchange of messages (verbal and non-verbal) which take place during a mediation session • Active and Interactive Listening Modes • Mediator must listen to the two parts of the message: Content/Substantive part + Affective/Feeling part

48. Mediator Skill Set (cont.) • Empathy • Mediator must be nonjudgmental: it is critical to listen in an objective fashion • Mediator remembers that people are motivated by needs; ascertaining these needs is a part of the mediator’s role and skill • Understanding of the law and awareness of options is key to moving the parties toward resolution • Above all, PATIENCE (allow the process to work)

49. Mediating Guardianship Cases:The Nuances • Two distinct issues at hand: question of capacity (whether a guardian should be appointed) and question of who should be appointed and the plan of care • Broad spectrum of capacity: many gray areas • Extent to which the alleged incapacitated person (AIP) participates in the mediation • Role of counsel for AIP: Matter of M.R. • Potential role of GAL (“patently absurd” or “undue risk of harm”)

50. Guardianship Nuances (cont.) • Notion of “least restrictive alternatives” (i.e. conservatorship, limited guardianship, etc.) • Multiple parties • Sudden conflict (loss of capacity of a loved one) with very little, if any, prior planning by the family • Fertile ground for reassertion of old family conflicts (conflict can be highly emotional)