Mediation takes center stage during coronavirus crisis

As court hearings and trials have been delayed during the current COVID crisis, another long look has been taken at mediation as an alternative for dispute resolution. Mediation in the right case could potentially avoid lengthy trial proceedings and the motions and petitions preceding them.

Recently, Chester County elder law attorneys had the opportunity to hear a presentation through Zoom by Bill Weber, a long time court appointed mediator in Chester County regarding procedures for mediation and when it best can be used including in potential contested guardianship cases.

Mediation involves a back and forth among the parties and also an opportunity for everyone to be heard. Documents and other information can be presented informally. If the parties cannot agree after, then with mediation

— unlike arbitration — they can continue to proceed with the litigation. However, it is assumed that in many cases a satisfactory result can be obtained without proceeding further.

Mediation can be used in other contexts, notably where there is a dispute among adult children regarding frail, disabled and incapacitated parents. If there is anything that brings out old family conflicts like care for, abuse of, and costs relating to elderly parents, I do not know what it is.

When adult children disagree on the best course of action regarding ailing parents, disputes dating back to childhood can resurface. Different family members can assume different roles and misunderstandings can develop. Sometimes one adult child becomes the caretaker and believes the others will never understand how difficult caretaking can be. Others, who might live at a distance might not recognize changes in their parent that require action. So long as brothers and sisters can communicate and so long as parents can continue to express their own wishes, plans can be developed. When family members can no longer talk to each other, an outsider in some cases can put things in perspective.

While mediation might not be the first remedy, it might be useful as one additional tool in dealing with this kind of family dispute. Frankly, much of what good elder law attorneys do when dealing with a family could probably be considered family mediation or family counseling whether all

family members are present or not. Our office, for one, tries to resolve potential conflicts between family members, where possible.

Where everyone agrees to a solution, this is simply a matter of putting together a plan and implementing it. A family agreement in writing can be extremely helpful here to pull together the understandings and, in the appropriate circumstance, to fairly compensate family members for the work they are doing .

Where there is serious disagreement, different roads might be taken. One of these might be, although it does not have to be, mediation and mediation can happen even after court proceedings have been instituted.

Here are some circumstances where mediation might be appropriate and successful and where it might not be.

Mediation is appropriate and often successful in matters where:

• The parties have or have had an ongoing personal relationship and have communication problems,

• The primary barriers to settlement are personal or emotional,

• All parties want creative solutions to deal with the problems,

• There is an incentive to settle because of time or cost of litigation, or

• The parties want a confidential forum to resolve their dispute…”

Mediation may not be appropriate, however, when:

• There are allegations of domestic abuse,

• Substance abuse,

• Emergencies, or matters involving extremely hostile or volatile participants.” Opposing family members may be represented by counsel in a mediation. Interested parties should be present. The process is normally confidential and parties are encouraged to speak freely. The benefits of mediation includes involvement of an unbiased party, the opportunity for the parties to vent regarding their viewpoints and the opportunity to realistically evaluate the strengths and weaknesses of different positions. Mediation could be considered even after a petition for guardianship has been filed. The incapacitated person may be able to participate through a guardian ad litem, that is an attorney whose purpose is to represent the interests of the party through the proceeding. At its conclusion there should be a written settlement agreement. While mediation has received its reputation mostly through divorce proceedings, family is just as involved in issues involving incapacitated seniors and mediation may be helpful in the right case.

Janet Colliton, Esq. is a Certified Elder Law Attorney and limits her practice to elder law, retirement and estate planning, Medicaid, Medicare, life care and special needs at 790 East Market St., Suite 250, West Chester, Pa., 19382, 610-436-6674, colliton@ collitonlaw.com. She is a member of the National Academy of Elder Law Attorneys and, with Jeffrey Jones, CSA, cofounder of Life Transition Services LLC, a service for families with long term care needs. Tune in on Wednesdays at 4 p.m. to radio WCHE 1520, “50+ Planning Ahead,” with Janet Colliton, Colliton Elder Law Associates, and Phil McFadden, Home Instead Senior Care.