Guardianship disputes can happen for many reasons. Whether they arise from family conflict, neglect concerns, or differing opinions on the individual’s living arrangements or medical care, court intervention may be required to help resolve the issue in the best interest of the individual.
Court proceedings, however, are often a lengthy and costly process that tests even the strongest family relationships. A way to eliminate a drawn-out litigation process is through an alternative dispute resolution process called mediation.
Below we will cover the ins and outs of mediation, benefits of mediation over litigation, and what a typical mediation process looks like for families looking to resolve guardianship disputes outside of the courtroom.
What is Mediation?
Mediation is a private and confidential intervention that involves two or more parties and a neutral third party mediator. It is commonly misunderstood that mediation is similar to either arbitration or negotiation. In actuality, mediation is an opportunity for opposing parties in a guardianship dispute to make decisions through the help of a third party facilitator.
Mediation is considered to be a more peaceful approach than litigation and can be applied to various types of conflicts. However, guardianship disputes involve the process of petitioning the court, so mediation may play an important part of guardianship proceedings but will not normally serve as a replacement.
Mediation of guardianship disputes can also be different compared to other forms of mediation because of the question of the capacity. That is, the individual at the center of the dispute is having their capacity called into question. The mediation process must take care to include the person under guardianship’s values and interests in a way that is meaningful and preserves the person’s ability to choose. This might require representation of the person under guardianship (e.g. guardian ad litem) or a chosen representative. At the same time, the mediation process can be tricky because of how the individual under guardianship may be influenced or coerced during this process.
Benefits of Mediation Approach
Mediation can offer significant benefits as part of the guardianship process, especially when family dynamics are involved. This approach facilitates a structured, confidential setting between the parties where all parties can address their concerns without involving the legal system. Here are a few key benefits of opting for mediation:
Preservation of Relationships: The role of the mediator is to help the two sides of the dispute through the process of self-determination, which will hopefully allow for a resolution of the dispute. But even if a resolution is not reached, the process of self-determination can help identify root causes of the conflict and help structure a framework for potential resolution. Opting for mediation can help resolve conflict peacefully, ensuring all parties are heard in hopes of finding common ground.
Confidentiality: If someone is concerned about the privacy of the dispute, mediation is a more private solution. Court proceedings and records are generally public. Mediation is private for both parties involved, and the opposing parties are asked to sign a confidentiality agreement.
Time Efficiency: Legal proceedings are notorious for being drawn out and inefficient. Mediation offers more flexibility and less scheduling hassles, which can lead to quicker guardianship dispute resolution.
Empowerment: Following mediation, parties may feel more empowered to handle conflict resolution without third party intervention now that they have been given the proper tools.
Understanding Mediation Process
The mediation process can vary depending on the state in which the dispute arises, the type of conflict, and other specific circumstances. Many states even have laws governing the mediation process, like in California, which requires the mediator to make reasonable efforts to advance the mediation in a timely manner.
Generally, the mediation process will be handled with these typical steps.
Selection of Mediator: Once all parties have expressed interest in meditation, or have been ordered to do so by the court, they will need to select a mediator. The American Arbitration Association (AAA) and the Federal Mediation & Conciliation Service (FMCS) are two organizations that offer free mediator search tools by location.
Preparation: Once the mediator has been selected, it is their responsibility to connect with all parties involved in the mediation separately to gather information related to the guardianship dispute, including concerns and positions. This includes an initial intake process, in order to determine who should be attending these mediation sessions and who is able to participate
Scheduling: Once all parties have had an opportunity to share their positions, the mediator will arrange a suitable time, date and location for the mediation session. During this time they will likely also provide a brief overview of the mediation process and what to expect.
Mediation Session(s): During the first mediation session the mediator will welcome all parties by providing an overview of the session and laying the ground rules. The mediator may also allow the parties to determine their own ground rules if appropriate. Additionally, any time during the session, the mediator or opposing parties may ask to have a private meeting. This private meeting provides an opportunity to vent or discuss sensitive issues that might not be able to be brought up in the open.
Issue Identification: After ground rules are laid, the next step in the session is to identify issues. Each party provides their version of the problems without being interrupted. The mediator’s role is to summarize each party and find common issues that are raised and establish a safe environment for conflict resolution. Once the parties have agreed to try and resolve the conflict peacefully, each party will be given an opportunity to share their perspective on the dispute and express their concerns. Not all guardianship disputes can be resolved within one session.
Dialogue Exchange: Once issues have been raised, the mediator allows the two parties to discuss with each other the common concerns openly.
Brainstorm: With the assistance of the mediator, the parties will engage in respectful open dialogue while working collaboratively towards potential resolutions. The mediator makes sure to let everyone know that the discussion does not mean commitment to any one solution. Additionally, the mediator may make some suggestions that were not originally brought up. Through this process, the negotiations should always focus on what is in the best interest of the person under guardianship.
Agreement and Documentation: Ideally, the final step of the mediator is to structure an acceptable solution to both parties. If all parties have come to an amicable agreement, the mediator will document the agreement. This written document can include all agreed-upon guardianship arrangements, responsibilities, financial agreements, or anything else related directly to the original dispute.
Court Approval: Depending on the jurisdiction, the court may need to review and approve the agreement. The court approval ensures the agreement meets legal requirements and remains in the best interest of the individual in question.
Implementation: Following court approval, the parties now have authorization to implement the agreement concessions.
If the guardianship agreement reached during mediation is not implemented as outlined or if additional conflict arises following mediation, there are a number of avenues to consider.
Information Communication: Given that mediation provides valuable communication tools during the mediation process, the parties may be able to amicably resolve any further conflicts that arise during the guardianship without the need of a third party mediator.
Mediation Review: If the guardianship disputes cannot be resolved without third party intervention or if the issues at hand have gotten more complex, the parties might consider returning to mediation to address the additional issues. In this scenario, the parties may use the same or seek out a different mediator.
Legal Counsel: If an amicable resolution can not be reached during mediation, it may be recommended to seek legal assistance. Legal counsel can help enforce the mediation agreement or, if the situation is beyond the original agreement, help address any new concerns or issues.
Court Intervention: In scenarios where the agreement was court approved, court intervention may be required for any modifications. Similarly, if the mediation agreement is not being enforced or if obligations are not being fulfilled, legal action may be required.
In California, conservators (i.e., the guardian) are subject to annual reviews where the conservator and ward are interviewed by investigators in an attempt to address any concerns the person under conservatorship may have and/or ensure the guardianship agreement is being followed.
Not all guardianship disputes will benefit from mediation. Alternative dispute resolution, like arbitration or litigation, may be necessary to further resolve any ongoing disputes.
Mediation and Adult Guardianships
With adult guardianships, mediation can be helpful any of the stages of the guardianship:
- Pre-petition stage: As an adult starts to show signs of diminished capacity, families will begin to see changes in the adult’s behavior. This results in family members trying various solutions and working with various providers (e.g. health, financial, medical) without necessarily understanding the root cause of the behavior. Mediation during this stage can be particularly helpful because it allows parties to vent emotionally and have a place where family can cope with an adult’s loss of capacity.
- Initial Petition stage: Mediation can help at the petition stage by bringing opposing parties together to come up with a united position that can be presented to the court. Oftentimes, at this stage family members have enlisted attorneys, either to file or fight the petition. Because of the due-process guarantees for adult guardianships, the petition process can end up becoming more adversarial, which can be emotionally harmful. Mediation can help each party explore the root causes for either their support or opposition of the guardianship and hopefully find a framework that all members can agree upon and bring to the court.
- Ongoing Issues: After a guardian has been appointed, there may still be potential sources of conflict, such as an adult’s declining health, quality of care, loss of freedom, or financial expenditures. Mediation can help with the discussion of these issues, and help both parties find possible resolution to these concerns.
- Termination of Guardianship: The termination of a guardianship might be a large source of disagreement. Mediation allows both parties to discuss their reasons for or against the removal of guardianship and can also help everyone prepare for the transition to a full restoration of rights for the individual.
Guardianship disputes can be emotionally charged and legally complex. As part of the guardianship process, consider whether mediation can provide a peaceful and mutually acceptable resolution for all parties, but most importantly the person under guardianship. The goal is to find a resolution that is in the best interest of that individual so that they can live a healthy and fulfilling life.