Contested Guardianships and Mediation

Contested Guardianships can be the Hardest Cases to Resolve

Guardianships typically involve who will control the personal care and finances of a person who is unable to manage their own affairs. Family dynamics typically play a large role in the litigation. Indeed, a guardianship proceeding is used by some or all of the parties as a weapon rather than as the means to safeguard the person and/or property of the alleged incapacitated person. Most often, it results from miscommunication or lack thereof between the parties. Control over an alleged incapacitated person or their estate turns the courtroom into a battleground for the avenging of perceived wrongs. Everyone wants their day in court, but sometimes the costs of that philosophy are too high. Contested guardianship cases are often lose-lose situations. Someone will eventually emerge the “winner”. However, the emotional and financial cost can be devastating to all involved.

Why Mediation Works

Mediation provides an ideal opportunity for the parties to air their differences. It gives parties the opportunity to be heard and respond to other perceptions. The result is that inefficient use of court resources is minimized and there may be a resolution achieved by the use of a neutral third party. Unlike judges, mediators have no power to decide the facts or issues. The mediator collects information and tries to facilitate a resolution through negotiation of positions. If a settlement is reached, a formal agreement is drafted. If no resolution is reached, the matter returns to court for resolution and no party is prejudiced by the position taken in mediation.

Mediation is typically held in a neutral setting. The typical mediation session begins with a brief opening statement by the mediator followed by the commencement of a dialogue between the parties. During the session, the mediator may meet privately with each party in what is known as a caucus. The contents of a caucus are confidential between the mediator and that party unless and until that party authorizes the mediator to divulge what was said. A mediation session terminates when the parties reach an agreement, or when either party wishes to stop the dialogue, as this is a totally voluntary process.