In 2019, New York courts implemented an initiative requiring parties and their attorneys to use alternative dispute resolution (ADR) for all litigation matters. In other words, if you are a party to a lawsuit, the court will likely mandate participation in some form of ADR, such as mediation. The goal is to get both sides to try to resolve their own conflicts and thereby save themselves and the court time and money going to trial. This requirement applies to all disputes, including guardianship, elder law, and trust and estate-related contests.
Importantly, attorneys should be helping the courts by encouraging clients to use ADR to settle their matter rather than litigate. In effect, attorneys should be “mediation (or ADR) advocates.” Unfortunately, not all lawyers are doing this. If you are considering or facing litigation involving an elder law matter, here are a few issues you should be discussing with your attorney:
- Benefits of mediation. Your attorney should explain how mediation works and where it can be beneficial in resolving conflicts. Mediation is a voluntary process for resolving disputes whereby an impartial professional facilitates discussion among the parties to help them come to an agreement. The mediator doesn’t impose a decision but does help the parties listen to each other, constructively deal with negative emotions, and stay focused on their goals. Its chief benefits include affording the parties control and flexibility over how their matter is settled. Discussions are also confidential. Mediation can also be less costly than litigation financially, emotionally, and in terms of the expenditure of time. However, mediation is not right for everyone and your attorney and the mediator should pre-screen for certain issues, such as if there is an abusive relationship between the parties.
- Timing of mediation. As noted above, your case will likely be referred for mediation once the action is commenced in court. Accordingly, your attorney should raise the option of trying private mediation before even starting litigation. Even if you can only settle a few of your issues, it limits what needs to be litigated in court, thus saving time and money.
- Retainer agreement. Whenever you hire an attorney, you should have a written retainer agreement that describes the scope of the attorney’s services. One issue to discuss is whether the attorney will represent you solely for the mediation (limited scope representation), or whether representation will continue if a settlement agreement through mediation is not achieved.
- Preparation for mediation. Your attorney’s preparation for mediation is not the same as for litigation. He or she must help you communicate the issues as you see them, the emotions or feelings you want heard, and the points of disagreement you believe exist. These will be included in pre-mediation written statements that the attorney prepares for the mediator summarizing the issues and your position. Your attorney should give you realistic expectations about your case. Finally, conflict situations, especially among family members, can be emotional and your lawyer can advise you about maintaining the right attitude and decorum to facilitate discussion and compromise.
- Closing the mediation. As you discuss settlement, it is important to note that the mediator cannot advise you regarding legal issues. Instead, your attorney will help protect your legal rights and interests. Once a settlement is reached, a written mediation agreement will be prepared, and your attorney will carefully review it before you sign. If the matter is not settled, the case will probably go to court and whether your attorney will continue to represent you depends on the terms of your retainer agreement.
Again, mediation is not right in every case, but in many instances, it is beneficial to attempt mediation before going to court as well as while your suit is pending in court. At a minimum, you should have a discussion with your attorney about using mediation. If your lawyer aggressively pushes you towards litigation, consider getting a second opinion.
If you would like assistance with your elder law matter, contact me for a consultation.