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Golden Inspirations |
"If you have a talent, use it in every way possible. Don't hoard it. Don't dole it out like a miser. Spend it lavishly like a millionaire intent on going broke."
- Brendan Francis
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Home  In this Issue Elder Law / Attorneys MEDIATION, WHEN THE FAMILY CAN'T AGREE.
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Mediation, When the Family Can't Agree.
By Robert A. McFarland, JD
The story has been heard any number of times about family members who cannot agree about whether an aging parent should go to an assisted living facility or have in-home care. Often related to these questions is whether a guardian should be appointed for the parent. Such disputes can turn ugly and eventually find their way into court where family members fight it out at great monetary and emotional expense. Furthermore, the family is left broken and alienated.
For the last twenty years, according to a 2006 report by the American Bar Association Commission on Law and Aging (1), there have been a number of studies done by various groups in a number of states around the country which all point to a rapid increase in the number of guardianship cases filed. The majority of those cases involve family members.
Other family-related litigation which has been on the increase has been the challenging of the validity of Wills (generally called caveats) and disputes over who will handle trust monies or estate administration.
Litigation is a vexing, emotional and expensive experience. Its results, while conclusive on the short term, leave family members bitter. The bitterness many times leads to more litigation later by other family members who feel aggrieved.
IT DOESN'T HAVE TO BE THAT WAY!
Rather than having a family go to court, wouldn't it make sense for them to try to work it out among themselves? This can be done through a process called mediation. Courts have been using it for years to help litigants resolve their disputes before going to trial.
A study done back in 2001 by The Center for Social Gerontology using case studies in courts in Florida, Ohio, Wisconsin and Oklahoma found considerably high success rates in settling cases with a high rate of satisfaction among those who participated in mediation (2). So what is mediation if it works so well?
In a few words, mediation is facilitated negotiation. It is a process where two or more people involved in a dispute meet with a neutral third party-a mediator- to discuss how to resolve it. The mediator's job is to be as neutral as possible in managing the negotiation process.
A skilled mediator will draw from the parties what is really important to them and what may be really driving the dispute. This allows the other parties to see what the other wants and why he wants it. As the mediator gathers information about the dispute, he or she begins to organize it into clearly defined issues for discussion. Through the skillful use of questions, the mediator begins to get the parties to brainstorm ways to address the problems.
As the brainstorming proceeds, the mediator will help the parties to negotiate from a position of knowledge and understanding and seek to have the participants come to an informed agreement. The points of agreement are written into a memorandum by the mediator. An agreement which is reached with the participation of all will be much more likely to be honored by all.
MEDIATION IS INEXPENSIVE AND QUICK.
Compared to litigation, mediation is by far the cheaper route. It also is the quicker one. A contested court case will often take a year or more to be heard (depending upon the jurisdiction). In the meantime, the attorneys charge by the hour to discover facts about the other side's case, interview witnesses, review reports and documents and prepare for trial. All this has to be done by the lawyer, even though the case settles shortly before trial. The cost can run in the many thousands of dollars.
Mediation is quicker because it can be scheduled with the mediator within days or weeks and the parties can begin to work on resolving their problems. The cost of mediation will vary, and will often carry a similar hourly rate as attorneys, but the important difference is that all the participants share in the payment of the mediator's fee. If a mediator is charging $200.00 per hour between three participants, each person pays $66.66 for each hour the session runs. If instead an attorney is negotiating at $200.00 per hour, the client is paying the entire $200.00 for each hour's work. The savings are obvious.
DOES ANYONE HAVE TO KNOW?
Mediation is confidential. The participants will typically sign an agreement to mediate which in large measure is a confidentiality agreement. Everyone agrees that anything said by anyone in mediation will not be used by the others should the matter go to court. Further, they agree that none of the parties will be allowed to make the mediator testify in court as to what was said. The strict adherence to confidentiality is to enable people to talk candidly with one and other. Candor is required to have successful mediation, so confidentiality is zealously guarded. Contrast this with a court action where there is a verbatim transcript kept of all that was said during trial - all accessible by the public.
STAYING IN CONTROL.
The participants in mediation together have control over the way the resolution is finally achieved - something that is lost at trial. Through the help of the mediator and their own efforts or help from other professionals, parties can intelligently find ways to resolve their problems to fit their circumstances.
A family may find that an assisted living facility is not needed but a combination of home health care and other resources may really fit what the parent wants and what the children can do. Instead of one person being the guardian who handles everything, the child with the money management skills can handle one part while another with better care-giving skills handles another. The possibilities are limited only by the parties' creativity and their willingness to finally come to an agreement. And after all is said and done, when a family successfully mediates a dispute, the family stays a family.
IF I WANT TO MEDIATE, HOW DO I FIND A GOOD MEDIATOR?
Be aware that most states do not have licensing requirements for mediators, so some caution in the selection process is in order. There are a number of online resources for finding a mediator which have certain rating systems based on years of experience and training. You can also check with the American Arbitration Association website for any lists of mediators. The AAA has some mediator lists which may be helpful.
Many courts have mediation programs in which they refer cases out for mediation to panel mediators. Call the court administrators who oversee the program and see if they routinely get feedback about a mediator's performance and see if they would be willing to refer some names to you. Some may be willing and some may not. The opinion of the court personnel is far more reliable since they have no interest in whom you select as a mediator.
Ask pointed questions of the mediator. How long has he or she mediated? How many cases have they mediated? Do they have any subject matter knowledge about your kind of problem? Have they ever been through any kind of classroom training and/or performance-based training or evaluation? Some mediation organizations provide a certification process that shows that a mediator has demonstrated that he or she has achieved a certain level of competency. Finally, ask if the mediator will meet with you to have an "orientation". Most mediators do and in such a meeting, the parties get to ask any questions they have about the process and about the mediator's qualifications.
When there is conflict in a family, it does not have to become a lawsuit. Families are meant to stay together. Mediation is one special way to manage family conflict so that a family can stay a family.
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About the Author
Robert McFarland is a mediator of civil and family-related disputes and is practicing attorney in Baltimore, Maryland. For more information about mediation, you can visit his website at www.mcfarlawmed.com/.
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(1) Erica F. Wood, State-Level Adult Guardianship Data: An Exploratory Survey, ABA Commission of Law and Aging, for the National Center on Elder Abuse, 2006.
(2) Evaluating Mediation as a Means of Resolving Adult Guardianship Cases, The Center for Social Gerontology, 2001.
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