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Mediation of Guardianship and Elder Law Cases

The following article was first published in the “Elder Law Attorney” the official publication of the New York State Bar Association Elder Law Section in the Fall 2000 issue (Vol. 10, No. 4) under the title “All We Are Saying Is Give Peace A Chance”. It has been modified slightly.

Who has been sleeping with whom? Who has been stealing from whom? Who has been doing all the work but getting none of the credit? Who has been taking advantage of a loved one and been getting away with it? Who is openly lying? A soap opera or television drama? No, just another day in court when guardianship petitions are being heard. Anyone who has had occasion to observe or participate in these matters can attest to the accuracy of the adage that truth is stranger than fiction. The allegations and testimony heard in guardianship proceedings are “juicier” than just about anything Hollywood could write. When a guardianship petition is being contested the courtroom is so quiet one can hear a pin drop.

It has occurred to me that often a guardianship proceeding is used by some or all of the parties as a weapon rather than as the means to safeguard the person and/or property of the alleged incapacitated person. Other times it is obvious that a matter is being contested because of mis-communication or lack thereof between the parties. Whatever the case, such contested proceedings are a terrible waste of the court’s time and resources. Additionally, they are severely emotional and embarrassing public airings of a family’s dirty laundry. Control over an alleged incapacitated person’s person or estate turns the courtroom into a battleground for the avenging of perceived wrongs, no matter how large or small, real or imagined.

Contested guardianship cases, like contested divorces, are often lose-lose encounters. Though someone will eventually emerge the “winner” by judicial decree, the emotional and financial cost to both sides often renders it a Phyrric victory. The battle only deepens the wounds which kindled the contest, and there is even less chance for healing them afterward. Rapprochement afterward is often nil. At best, the parties share an uneasy coexistence because of people of mutual concern, i.e., the incapacitated person or minor children of the marriage, respectively.

As a certified mediator, I believe that mediation provides an ideal opportunity for the parties to air their differences, feelings, opinions, perceived slights, etc., giving the parties the opportunity to hear, consider and respond to each others’ perspectives and possibly change their own position accordingly. This could result in a measurable reduction in the inefficient use of court resources.

Many attorneys, and most lay people, confuse mediation with other forms of alternative dispute resolution (ADR). Mediation is a voluntary and confidential discussion between the parties with the aim of resolving the conflict between them. The mediator’s role is to facilitate that discussion. Mediation is not arbitration or early neutral evaluation. The mediator has no power to decide the facts or issues, unlike a judge, arbitrator or early neutral evaluator. Mediation is not therapy. Since mediation is confidential, the parties agree that the mediator cannot be subpoenaed to testify on anyone’s behalf. The parties also agree not to divulge or voluntarily testify about anything said during the course of the mediation. The mediator collects and destroys all notes taken during the mediation including the mediator’s own notes. Moreover, most courts prohibit statements made during settlement negotiations from being introduced into evidence. For example, in New York, CPLR §4547 provides that with limited exception “[e]vidence of any conduct or statement made during compromise negotiations shall also be inadmissible.” Therefore no party prejudices its position by engaging in mediation.

The mediation session is held in a neutral setting. The typical mediation session begins with a brief opening statement by the mediator followed by the commencement of a dialogue between the parties. During the session the mediator may meet privately with each party in what is known as a caucus. The contents of a caucus are confidential between the mediator and that party unless and until that party authorizes the mediator to divulge what was said. Of course, the other parties are entitled to equal time in caucus with the mediator at the parties’ own discretion. A mediation session can last anywhere from one to several hours. A mediation session terminates when the parties reach an agreement, or when either party wishes to terminate. Bear in mind, since mediation is voluntary there is little point in trying to mediate if the parties do not in good faith desire to resolve their differences. An agreement may be oral or written. A written agreement is considered a binding stipulation or contract and can be the basis of judicial enforcement of its terms. That the parties do not reach an oral or written agreement does not mean that the mediation session was a failure. The parties may well leave the session with a new understanding of the other participants’ perceptions, points of view, needs, goals and desires. This alone may cause a party to alter its position or narrow the issues remaining to be litigated and facilitate resolution of the matter.

While attorneys are welcome to participate in the mediation session, they should remember that the purpose of mediation is candid discussion among the parties; mediation is not the proper forum for the attorney to advocate his or her client’s case. Additionally, it is submitted that mediation will not diminish an attorney’s net fees in a given matter. Legal fees are determined by the court and do not usually equate to full payment at the attorney’s usual hourly rate, particularly where, as is often the case, the estate is not large. A mediated solution may well result in less uncompensated or under-compensated attorney time.

Mediation can be useful in any conflict where the parties are willing to enter into a good faith discussion to resolve their dispute. A contested guardianship petition is just one area of Elder Law where mediation is valuable. If interested persons believe an already-appointed guardian is not acting in the best interests of the ward the court might utilize mediation to have the parties themselves resolve the allegation before it rises to the level of litigation. Mediation can be beneficial in other areas of Elder Law as well. For example, a client goes to an attorney for preparation of advance directives and/or estate planning in which he or she is going to disinherit or treat some of his or her heirs in a substantially unequal manor, such that it is likely there will be litigation down the road over the documents the attorney is about to draft. The attorney can be proactive and advise the client that investing a relatively small amount of time and money now in mediation may save substantial time and money later by helping prevent litigation and providing a greater degree of certainty that the client’s desires will be implemented as planned without costly challenge. Grandparent Rights, increasingly the subject of intense litigation, is another area of Elder Law in which mediation can certainly play a large role.

A common complaint about our legal system is that even after having had his or her “day in court” one feels that they did not get to tell their whole story and did not get to speak their mind to their opponent. Mediation is a positive and constructive method to eliminate these criticisms. By agreeing to mediation parties have nothing to lose and everything to gain. The parties have control over the process and have an opportunity to tell their story as they see it in their own words. By utilizing mediation courts also have nothing to lose and everything to gain. The worst-case scenario for a completely unsuccessful mediation is that the case is exactly where it would have been had there been no mediation at all.


Robert Grey

Robert A. Grey is an attorney in Melville, Long Island, New York, serving Long Island, the Five Boroughs of New York City and the New York Metropolitan Area. He maintains a general practice with emphasis on Alternative Dispute Resolution (ADR), including Mediation and Arbitration, Elder Law, Decedent’s Estates, Real Estate,… MORE >

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