Conflicts over the care of an older loved one can be devastating to families. The parties are often emotional and long-standing relationship issues can get in the way of resolving issues. One solution to these problems is to use mediation in guardianship disputes. Mediation provides significant financial and personal benefits over litigation in many situations. Here are a few key points you should know:

  1. New York has a strong preference for mediation. In 2019, New York courts implemented an initiative requiring parties and their attorneys to use mediation for all litigation matters, including guardianship disputes.
  2. Mediation is not available for all guardianship matters. Under New York law, mediation cannot decide whether an individual is incapacitated or under a legal disability; only a court can determine that. However, it is available in conflicts over who should serve as guardian, the powers of the guardian, access to the incapacitated individual, information to be provided about the individual’s health and finances, the validity of advance directives and other disputes.
  3. Certain parties may participate in the meditation. The petitioner, cross-petitioner, their attorneys (if any), the incapacitated person’s court-appointed attorney, and family members with a ‘stake’ in the outcome of the dispute may participate in the mediation.
  4. Mediation can occur pre-and/or post-petition. It is a good idea to attempt private mediation before filing a petition in court to help avoid litigation or at least limit what issues must be litigated, thus saving time and money. After filing a petition, the parties can still agree to mediation or the court can order it.
  5. Proposed court rules will further expand the use of mediation. Currently, there is a proposal to change court rules to make the preference for mediation a permanent presumption throughout all New York courts in disputed litigation. In addition, new rules and dispute resolution options will be developed to aid in the use of mediation.

Mediation in guardianship disputes is not appropriate in every case, but it is important to discuss it with your attorney. 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.