Mediation in Surrogate’s Court and Elder Law Matters

Mediation is a dynamic, structured, interactive form of alternative dispute resolution used to resolve a broad range of conflicts in a variety of settings. It is particularly well suited to the resolution of conflicts among and between family members. It is a process by which an impartial third party facilitates communication and negotiation and promotes voluntary decision-making by parties who are in dispute. It enables parties to formulate their own interest-based resolution outside of court and without strict regard to the remedies afforded under law. Parties are not required to be represented by counsel but they frequently are and counsel work together with the mediator to aide the parties in reaching their goals. The parties take responsibility for their disputes and the resolution of those disputes.


Mediation provides disputing parties with an opportunity to: define and clarify issues, understand different perspectives, identify interests, explore and assess possible solutions or “think outside the box,” and reach mutually satisfactory agreements. Not all mediation results in an agreement but, often, even when the parties have not resolved the conflict, they have a better understanding of their adversary’s position and of what it will take to reach resolution.


Because it takes less time than a court case, it is less costly. Court hearings are public, mediation remains strictly confidential. The mediation process increases the control the parties have over the outcome of their dispute. There is no judge or jury so the parties establish their own goals. For this reason, that the result is mutually agreeable, compliance with the mediated agreement is usually high. The mediated agreement is, however, fully enforceable in a court of law.


The cornerstones of mediation are: confidentiality, the information obtained or exchanged by the parties during the mediation cannot be used in subsequent litigation and the mediator cannot be called as a witness; voluntary participation, the parties make free and informed choices as to the process and outcome; self determination, the parties mutually agree to such issues as mediator selection, participation, process design, resolution, and termination; and impartiality or freedom from favoritism, bias or prejudice.


The issues that are commonly resolved through adult family mediation are:


• Physical, mental, emotional decline of a parent or loved one

– parties do not agree on what “incapacity” means

– parties struggle to secure control

– parties are at variance with medical treatment decisions


• Independence and self-determination vs. safety

– in these disputes, the parent typically opposes the child’s interference


• Caregiver issues – who is best suited to care for the parent or loved one

– residence and long-term care decisions – powers of attorney/health care proxy

– who makes which decisions


• Adult guardianship


• Estate and inheritance disputes

– sale of family home

– division of valuable and sentimental possessions

– issues between spouse and children of former marriage


We suggest that, if you or a friend or family member is facing issues like these, strong consideration be given to whether mediation might assist in the resolution of the problem. We at Berwitz & DiTata LLP stand ready to assist you or answer your questions.