(“The ElderLaw Report: Including Special Needs Planning” is the premier newsletter covering elder law and special needs planning issues. This monthly newsletter keeps legal professionals current with critical developments in elder law and special needs planning, and supplies real-world solutions to the unique legal problems facing senior and disabled clients. The most recent article I prepared for The ElderLaw Report, along with my friend and colleague Jane M. Fearn-Zimmer, Esq., LLM, discusses elder mediation, and is reproduced below.)
By 2030, the elderly will outnumber the young in the United States population. With the increased number of elderly and disabled individuals being cared for by family members will come an increase in disputes elder mediation can successfully resolve elder-related disputes and estate mediation can successfully resolve elder-related disputes, while preserving family harmony and allow- ing all the participating family members, particularly the elderly or disabled individual, to have some input into the solution. [See Sadick, “Battling it out when it comes to aging parent’s care? Elder mediation might help, Chicago Tribune, December 13, 2017, available online at http:// www.chicagotribune.com/lifestyles/sc-fam-elder-mediation- 0102-story.html ].
Donald Vanarelli, Esq. is an Accredited Professional Mediator, and a co-founder of the Elder Mediation Center of New Jersey, a collaborative alliance of independent mediators, attorneys, geriatric care managers, and other elder care professionals. Mr. Vanarelli recommends elder mediation as a neutral decision-making framework that allows the parties to control the outcome and develop unique solutions that would not be available to a judge in a court proceeding. He observes that mediation can be less costly, both financially and emotionally, than litigation in resolving ongoing family dynamics and care-related disputes.
Elder mediation is well-suited to resolve the typical issues arising in an adult, incapacitated guardianship, from questions of capacity, medical, and asset preservation issues to who will serve as the guardian or co-guardians. When there is ongoing behind-the-scenes alienation of an indi- vidual with diminished capacity, the mediation process can provide a more transparent and effective framework to protect the alleged incapacitated person due to the ongoing nature of the mediation process. By contrast, alienation is less likely to be detected in a guardianship because the incapacitated person and his or her family members are more likely to be observed at a single point in time.
Mediation can also be used in the special needs planning area to resolve disputes such as the amount to fund a special needs trust. Trigger points or bench marks can be negotiated into a mediated settlement to resolve the time- frame for a parent’s institutionalization or for empower- ing an adult disabled child with additional responsibilities and decision-making authority in lieu of guardianship. Security agreements to guarantee a divorcing parent’s future financial obligations can also be incorporated into a mediation agreement, with an enforcement mechanism.
Mr. Vanarelli delineates the steps in the elder mediation process as follows. First, contact the parties and gather background information and facts needed to con- duct the mediation sessions. When an agent is used, the power of attorney must be reviewed to ensure that it is broadly worded to allow the agent to enter into mediation contracts. The next step is to build credibility for the mediation process in general, and for the mediator, and to establish rapport with the disputants. The mediator’s introduction sets the tone of the mediation, so take time to draft an opening statement (or at least an outline) that reflects your personal style but also touches on key points. Next comes additional fact gathering, issue identification, brainstorming, devising and, hopefully, agreeing on options to resolve the conflict. The mediator will write up the mediation agreement, which is then executed by the participants.
The effective elder mediator must hear the concerns of the elder, the caregivers, and the family; must develop a plan that will address those concerns in a positive and practical way; and must facilitate and support the family members in creating workable and mutually acceptable solutions to disputes and in developing new communication strategies for the future.
Mr. Vanarelli cautions that elder law is a complex area, so it is also important that the elder mediator have a solid understanding of Medicaid, Veteran’s Benefits Aid and Attendance, Supplemental Security Income and Social Security Disability Income, and other public benefit pro- grams such as SNAP and Section 8 housing. The elder mediator should also be well-versed in handling capacity issues (including undue influence) and fiduciary duty matters.
Mr. Vanarelli trained in mediation through Elder Decisions, a group of mediators based in Boston, Massachusetts. Certification as an elder mediator is also available through other sources, including live webinars and on demand video training through the Elder Mediation International Network, the Good Shepherd Mediation Program presented in Philadelphia, Pennsylvania, and the Eldercare Essentials Mediation Training in Highlands Ranch, Colorado. Additional training may be available through books and continuing legal educational seminars.
The June 2018 edition of “The ElderLaw Report: Including Special Needs Planning,” containing my article on Elder Mediation, may be found below:
For additional information concerning Elder Mediation, visit:
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