“Peace is not the absence of conflict but the presence of creative alternatives for responding to conflict”

Dorothy Thompson

We at the Elder Mediation Center of New Jersey strive to provide efficient, knowledgeable, affordable services designed to resolve the conflicts that arise in the field of elder law. We provide elder mediation services, a specialized form of mediation to help elders, the disabled and their families deal with conflict.

Reaching our “golden years” can be a time of joy or a time of distress. Often, it is both. But aging is always a time of transition. With Americans living increasingly long lives, coping with this transition is an issue faced by a growing number of elders and their loved ones. How we deal with these transitions can have a lasting effect on our well-being and the well-being of family members and loved ones.

The Resolution of Disputes Involving the Elderly and Disabled Requires Specialized Mediation Skills

Elder law disputes often possess traits that may make elder mediation a particularly attractive option for elders, the disabled and their loved ones. For example, elder disputes routinely involve members of an immediate or extended family, who wish to maintain a long-term relationship and who recognize that litigation often leads to the destruction of close family relationships. These family members see that resolution of family disputes is much more complex than the “win-lose” principles embodied in the litigation process. These disputes often involve issues, emotions, and conflicts that may have been underlying family relationships for many years. Conflict does not develop in a vacuum. The conflict is “about” much more than the parties may initially understand, involving unspoken and unacknowledged beliefs and deep feelings. By recognizing and acknowledging the complex background in a particular conflict, mediation offers a more creative and comprehensive way of addressing elder issues. As opposed to the general field of mediation, elder mediation often centers on an elder or disabled family member, whose opinions may tend to be either disregarded as unrealistic, or overshadowed by the opinions of well-meaning relatives. However, central to the practice of elder mediation is the recognition that the elder or disabled person, often the center of the conflict, is the most important participant: his or her voice must be heard, and respected, if the conflict is to be resolved.

Mediation is often praised as a much less expensive and less time-consuming than litigation. In addition, because these disputes often involve very private family issues, mediation offers an alternative to the public disclosure often feared by the parties in litigation.

As such, mediation is an attractive alternative for those who are considering litigation of elder disputes, and to those immersed in conflict who feel that there is no hope of resolution.

Mediation and The Role of the Mediator

Rather than a confrontational process (as in litigation), mediation is a completely voluntary, supportive process in which a neutral third party helps guide the parties in conflict toward an understanding of their dispute, control of family emotions and turmoil, compromise and resolution of that conflict, and perhaps toward a new way of relating to family members. This neutral third-party, the mediator, does not advocate a certain position or render legal advice. The mediator does not tell one side or another that he or she is right or wrong. Nor does the mediator insist that a resolution “fit” within a particular legal framework. Instead, the mediator explores the conflict in issue, in the context of the parties’ relationships, including their needs, goals, fears, ideas, perceptions and values, and helps the parties to explore options to resolve that conflict. Often, the process of mediating a dispute will lead participants to strengthened family relationships.

The mediator welcomes the contribution of ideas from all parties, and attempts to build on the positive aspects of the relationships that the parties have established over the years. The goal of mediation is to reach resolution regarding the issue of conflict, while allowing the parties to move forward with a relationship that has been not only preserved, but strengthened by the process, in a way that may help the parties to deal effectively with future transition and conflict.

Examples of issues that may benefit from mediation

            Disputes surrounding the care of an elder or disabled  person

• Will the elder or disabled person remain living at home, or move to a child’s house, an assisted living facility or a nursing home?
• How will the family members divide responsibility for the elder/disabled person’s care needs?
• Will those family members be reimbursed for their time providing care services and, if so, how?
• Will the family contribute financially toward the elder/disabled person’s needs and if so, in what proportions, and will those contributions be equalized at a later date?
• Issues involving an elder/disabled person’s increasing care needs

            Independence issues

• Is it time to address the elder’s or disabled person’s continued driving?
• Can the elder/disabled person’s increased needs be addressed through a part-time or full-time home health aide, or other support services at home?
• Can the family make appropriate arrangements for an ailing parent or disabled family member so that guardianship litigation is avoided?

            Trust and Estate Conflicts

• Can the family openly address the elder/disabled person’s present financial condition and potential future needs?
• Can the parent or disabled family member’s long-term care needs be resolved through the use of estate documents?
• Can the parent review his or her estate plan with the family in order to avoid future estate administration conflicts?
  

The Elder Mediation Process

Elder mediation typically involves the following steps:

a.         Identifying the Parties

The parties involved in an elder mediation need not be limited to immediate family members. It is often beneficial to involve the elder or disabled person’s friends, trusted advisors, financial planners or others.

b.         The Role of the Mediator, Parties and Attorneys

Again, it is important to recognize that the mediator is a neutral third-party who does not advocate a certain position or render legal advice. The mediator strives to ensure that the voices of all interested parties, and particularly that of the elder/disabled person, be heard and respected. The parties are not foreclosed from retaining attorneys to accompany them during the mediation process, if they choose to do so.

c.            Identification and Analysis of the Issues

Because elder disputes often involve issues, emotions, and conflicts that may have been underlying family relationships for many years, the conflict is often “about” much more than the parties may initially understand. The mediator guides the parties toward recognition of the often complex background in a particular conflict. Addressing these secondary issues of conflict sets the stage for a more creative and comprehensive way of resolving elder issues.

d.         Providing information to the Parties

The professionals who are members of the Elder Mediation Center of New Jersey offer extensive backgrounds in the fields of elder law, litigation, estate and asset protection planning, and geriatric care. They are able to provide the parties with information on the issues that impact on the family’s conflict, and resolution of that conflict.

e.         The mediation sessions

Mediation sessions may occur with all parties together, or may “caucus” into smaller groups at certain points. If the mediator believes that the parties would benefit from the involvement of other professionals (such as a financial consultant, family counselor, or geriatric care manager), these outside professionals may be included in the mediation session(s) to offer their professional advice. Again, it is important to remember that all parties to the mediation will be heard, and that an agreement will not be reached without the assent of all parties.

f.            Memorializing the resolution

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When the parties have reached resolution of the conflict, the mediator will draft a Memorandum of Understanding, which will identify the issue(s) addressed and the parties’ resolution of those issues. It is helpful to include in the memorandum of understanding the parties’ agreement for resolving future disputes.

g.         Post-mediation issues

The goal of elder mediation is that the process of mediating a dispute will lead participants to strengthened family relationships, in which future conflicts can be resolved more easily. However, the parties’ Memorandum of Understanding can address the parties’ agreement to mediate future disputes, if necessary.

Our Mission Statement:

The Ethical Approach to Elder Mediation

The Elder Mediation Center of New Jersey approaches dispute resolution based upon ethical principles: the recognition that the elder or disabled family member, who is often at the center of the conflict, is the most important participant; our core belief that the voice of the elderly or disabled person must be heard and respected if the conflict is to be resolved; the role of beneficence, or the commitment to do no harm in the process; the commitment to fidelity and faithfulness to clients and the process, which encourages family members to achieve creative solutions best suited for them; and respect of, and fairness to, all parties involved.

The professionals who are members of the Elder Mediation Center of New Jersey bring to the table a commitment to these goals; years of training in mediation and dispute resolution; and extensive backgrounds in the following fields:

• litigation
• asset protection
• estate planning and administration
• geriatric care
• trusts
• guardianships
• representing the elderly and disabled
• Medicaid and other public benefits programs
• medical decision-making
• end-of-life decisions
• financial arrangements

Donald D. Vanarelli is a Certified Elder Law Attorney, by the National Elder Law Foundation, accredited by the American Bar Association and an Accredited Professional Mediator and  founding member of the Elder Mediation Center of New Jersey, Inc.

The Elder Mediation Center of New Jersey
P.O. Box 8017
Princeton, NJ 08543
Phone: 908-232-7755
Toll Free 888-609-6565