As the costs of litigation increase and parties look for alternatives to this cost and to the adversarial, winner-take-all process of litigation, interest in mediation has increased. Mediation is now used frequently in the family law and child protection contexts. And while the family bench and bar have become proponents of ADR, including mediation, the use of mediation in divorce proceedings has received criticism as well as accolades. Few states provide guidelines or minimum qualifications for mediators. Many mediators are not attorneys, and the question remains whether knowledge of the law is important in mediation. Another concern is a perceived power imbalance that critics say disadvantages women in divorce mediation. This imbalance based on gender stereotyping can be exacerbated by differences in earning power and, if present, physical abuse. Some commentators believe mediators can overcome this imbalance. Finally, there is no generally accepted ethical code or professional standards for mediators. Ethical concerns arising in mediation include conflicts of interest, impartiality, the role of the mediator vs. self-determination, providing professional advice, advertising, and fees. Without a code of conduct, no standards are available to help answer questions about mediator ethics.
There are two general approaches to mediation. With the “facilitative” approach, also called a process-oriented approach, the mediator empowers the parties to generate their own options. An “evaluative” or substance-oriented mediator steers the parties toward resolution; this approach is thought to work well in settlement of financial disputes. A facilitative style, however, may permit the parties to vent emotion and maintain cooperative future relationships and is believed to be better suited to mediation among families and in child protection situations.
Overview of Guardianship
Three primary issues arise in guardianship litigation. First, does the individual meet the criteria for appointment of a guardian in the jurisdiction? In a jurisdiction governed by the Uniform Guardianship and Protective Proceedings Act (UGPPA) as adopted by the National Conference of Commissioners on Uniform State Laws in 1997, the question is whether the individual is an incapacitated person. If not, the guardianship petition should be dismissed. If the individual is incapacitated, the second issue is whether guardianship is necessary or whether there is a less-restrictive alternative that could obviate the need for appointment of a guardian. If a less-restrictive alternative exists, the guardianship petition should be dismissed. If there is no less-restrictive alternative, the third issue is whether the nominee for guardian is an appropriate choice. If the nominee is an appropriate guardian, there must be a determination as to what authority should be granted that person; if the nominee is not an appropriate choice, an alternate must be found.
There may be quite a number of parties in a guardianship case.
- Petitioner: A person who is interested in the welfare of the alleged incapacitated person (AIP)—a family member, a friend, or a government agency (typically a government attorney acting on behalf of Adult Protective Services).
- Respondent: The AIP, i.e., the individual for whom the appointment of a guardian is sought.
- Family Members: The spouse and adult children of a respondent must be named in the petition, and notice of the hearing for appointment of a guardian must be provided to them. My experience is that not all adult children will participate in a guardianship hearing, but most, if given the opportunity, will do so (and parties who live out of state have been amenable to appearing in court by telephone conference call).
- Domestic Partner or Roommate: Under the UGPPA, any adult with whom the respondent has resided in the last six months must be named in the petition, and notice of hearing must be provided. The non-married partners of many respondents generally will participate in a guardianship hearing, while roommates who are not intimately involved with the respondent do not always choose to participate.
- Interested Persons: Under the UGPPA, any person can petition the court for the right to participate in a guardianship hearing. The court may grant the request if it is in the best interests of the respondent. This provision can allow individuals who know the respondent but are not family members or roommates to participate and provide valuable input about the respondent and any assistance the respondent has in the community to help the respondent meet his or her needs.
- Petitioner’s Counsel: While some guardianship petitions are filed pro se, many petitioners are represented by counsel. Governmental agencies are generally represented by their city or county attorney’s office.
- Court Visitor: The court will appoint a court visitor upon the filing of the petition. The visitor conducts an investigation of the information alleged in the petition by interviewing the respondent and petitioner and gathering information, including information regarding the respondent’s physical and mental condition. The court visitor files a written report with the court. Under UGPPA, the visitor is not generally present at the hearing, but the court reviews the visitor’s report.
- Respondent’s Counsel: Under the UGPPA, enacting states had the opportunity to opt for mandatory appointment of counsel for respondents, rather than appointment of a court visitor. While most guardianship statutes give the respondent a right to counsel if requested, an attorney is not appointed in every case. I have been hired by respondents on more than one occasion to represent the respondent in a guardianship matter as a private attorney and have also served as court-appointed counsel in many instances.
- Counsel for Interested Persons: Some family and friends of the respondent may choose to hire counsel to represent them as they participate in a guardianship matter. I have represented adult children, spouses, stepchildren, and friends of the respondent. Generally, an interested person with a concern about the proposed guardian or about some planned change in the respondent’s life may, rather than appearing pro se, elect to hire counsel to advocate his or her position more effectively. This might occur, for example, when an individual wishes to be appointed guardian because he considers himself more suitable than the nominee.
- Guardian ad Litem: In many jurisdictions, a guardian ad litem is appointed. This is generally an attorney, who is appointed to act as the “eyes of the court” and to advocate for the best interests of the respondent. The guardian ad litem may not necessarily advocate for what the respondent wants, as the guardian ad litem’s obligation is to make a recommendation regarding the best interests of the respondent.
- Evaluator: A guardianship matter is premised on an allegation that the respondent is “unable to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance.” UGPPA § 102(5).While an evaluation is not mandatory, some evidence of the respondent’s inability to meet his or her needs must be provided. Any party, including the court visitor or respondent’s counsel, may request an evaluation, or the court may order an evaluation on its own motion.
While the petitioner and respondent are mandatory parties at the hearing, the other parties may or may not be present. The individual who conducted the evaluation may be present if the matter is contested, but more often the report prepared from the evaluation is admitted without the testimony of the evaluator. The court visitor’s report may be admitted, but the visitor is generally not present. In a contested matter, there may be multiple parties present who may or may not be represented by counsel, and there could be more than one witness with evidence as to the functional ability of the respondent.
Due Process Concerns
The area of guardianship law has been under considerable review in the last 20 years. A national conference, originally called the National Guardianship Symposium, but more popularly known as the Wingspread Conference, produced recommendations for reform of guardianship laws. Of particular note are those for due process protections, including the right to specific petition forms, notice, counsel, and, at the hearing, the right to be present, to compel and examine witnesses, to present evidence, to application of a clear and convincing evidence burden of proof, and to appeal.
Many states reformed their guardianship laws using the Wingspread recommendations as a model. The UGPPA addressed the Wingspread recommendations, but as noted above, the uniform act did not create a mandatory right to appointment of counsel, leaving the decision up to the enacting state. While a guardianship process is a civil proceeding, the result of appointment of a guardian is the loss of significant civil liberty. In fact, one congressional committee called guardianship “the most severe form of civil deprivation which can be imposed on a citizen of the United States.” Joan L. Sullivan, Role of the Attorney for the Alleged Incapacitated Person, 31 Stetson L. Rev. 687, 694 (2002) (quoting H.R. Rep. No. 100-639, at 21 (1987)). Without appointment of counsel, the respondent, as a layperson, is not likely to be able to effectively defend against a guardianship petition, even if provided with adequate notice and a copy of the petition. The failure to mandate appointment of counsel for respondents in guardianship cases is a glaring due process concern that cannot be ignored, despite state judicial budgetary concerns. Interestingly, courts are increasingly finding that a child who is under the protection of the court in a child protection case has a right to counsel.
Proof Required at Hearing
At the hearing for appointment of a guardian, the court must find both that the respondent is an incapacitated person and that no less-restrictive alternative than guardianship exists. Clear and convincing evidence is needed to show that the respondent is incapacitated and that his or her needs cannot be met by less- restrictive means. The court may treat a petition as one for a protective order and must grant to a guardian “only those powers necessitated by the ward’s limitations and demonstrated needs.” UGPPA § 311(b).
In the original petition that initiated the guardianship matter, the petitioner must address the need for the guardianship and the extent of the requested guardianship. In particular, the petition must state: “the reason why guardianship is necessary, including a brief description of the nature and extent of the respondent’s alleged incapacity”; and “if an unlimited guardianship is requested, the reason why limited guardianship is inappropriate and, if a limited guardianship is requested, the powers to be granted to the limited guardian.” Id. § 304(b)(7), (8).
The Role of Mediation in Guardianship
A second national guardianship conference, the Wingspan Conference, was convened in 2001 to examine the progress made regarding the Wingspread recommendations and to make further recommendations for reform. Its recommendations included that: standards and mediator training be developed, awareness of risks and benefits be raised, and research be conducted into alternative payment sources to expand availability and affordability of mediation.
Can a Respondent Alleged to Be Incapacitated Participate in Mediation?
“Adult guardianship mediation raises special issues about the proposed ward’s ability to participate and the potential for disadvantage due to power imbalances.” Ellen E. Deason, State Court ADR: Probate, Family, Other Specialized Courts Are a Key Source Innovation, Disp. Resol. Mag., Fall 1999, at 6. However, participation in mediation can be supported more easily than participation in a hearing, where the respondent would have to testify under oath and defend against a petition for guardianship. In the more informal process of mediation, a respondent is more likely to be able to communicate his or her concerns and desires.
“The question is not so much ‘does the party have capacity to mediate’ as ‘can the party mediate with support?’ and ‘what can the mediator do to facilitate the understanding of the party?’” Erica Wood, Addressing Capacity: What Is the Role of the Mediator?, Mediate.com (July 2003), http://www.mediate.com/articles/woode1.cfm. A mediator trained in guardianship can provide a settling that helps maximize the abilities of the respondent, including giving the respondent sufficient time to process information before responding to others.
A set of guidelines has been developed for mediation in cases under the Americans with Disabilities Act (ADA) for determining a party’s capacity to mediate. ADA Mediation Guidelines (2000), available at http://cardozojcr.com/ADA%20Mediation%20Guide.pdf. To summarize, mediators and providers must determine, based on consideration of medical conditions and all other factors, whether the parties have the capacity for voluntary and informed consent. The factors include whether a party understands the nature of the mediation process, who the parties are, the role of the mediator, the parties’ relationship to the mediator, and the issues at hand. The mediator should determine whether the party can assess options, and make and keep an agreement.
Capacity is a decision-specific concept. Capacity to mediate may not be the same as capacity to make financial or health care decisions, to vote, to marry, or to drive. A party with a judicial determination of incapacity may still be able to participate in mediation. Conversely, a party without such a determination may not have the ability or understanding to participate.
Id. ¶ I.D.3. The guidelines go on to specify what must be done if a disability is interfering with the capacity to participate in mediation and what accommodations or supports may help. In the absence of capacity, despite support, a lawful surrogate will need to participate. “The mediator should encourage the surrogate to express the party’s interests, values and preferences.” Id. ¶ I.D.6.
It is possible that in order for the respondent to mediate effectively, he or she will need to be represented by appointed counsel. In some instances, it may be in the best interests of the respondent to appoint both counsel and a guardian ad litem. Confidentiality concerns, however, exist when a guardian ad litem is appointed. Because a guardian ad litem is appointed to represent the best interests of the respondent and to make recommendations to the court, there is generally no confidentiality for communication with a guardian ad litem. One way to resolve this issue is to have the guardian ad litem prepare and file the report prior to the mediation session and participate in the mediation session; if an agreement is reached, there is no confidentiality problem because the guardian ad litem need not testify and possibly reveal confidential information. Another remedy is for courts to grant confidentiality to the guardian ad litem for mediation purposes. This may require statutory changes.
Information Necessary for an Effective Mediation
Certain information is essential for effectively using the mediation process to generate possible less-restrictive alternatives, limited guardianship, or consensus among the parties for resolving issues by agreement. This information includes: medical work-ups providing sufficient information regarding the respondent’s medical condition and cognitive and functional abilities; legal information, including all planning documents in existence; financial planning information, including investment, tax, budget, Medicaid planning, and real estate valuation information; insurance information, including life, health, and long-term care insurance; and living options, including whether the petitioner contemplates any change in residence and why. This information should address any functional limitations of the respondent and what support each option could provide for such limitations.
One frequently raised question is whether the mediator should be an attorney trained in probate matters or a non-lawyer mediator. There are valid arguments for both positions. An attorney is better able to address the legal requirements of a guardianship matter, while mediators from other disciplines may be better able to handle family conflict or have more care-planning expertise and would better assist the parties in making a plan for a less-restrictive alternative to guardianship or fashioning of a limited guardianship.
Which Issues Might a Guardianship Mediation Address?
Issues that the parties may seek to resolve in mediation include disputes among adult siblings, financial matters, residence issues, estate planning, sale of assets, medical treatment, and, of course, who should be guardian.
Disputes among adult siblings may actually be long-standing conflicts related or unrelated to the guardianship. Unfortunately, family members sometimes contest a guardianship petition as a way to thwart a sibling for reasons having little or nothing to do with the guardianship matter itself.
Financial decisions are frequent concerns. One child may be assisting the parent and receiving support and/or compensation, which can cause other siblings to believe that the parent’s assets are being unfairly distributed. A spouse may be reluctant to consider placement for the respondent because of the potential drain on the couple’s finances. Dissipation of parental resources may be a concern to adult children anticipating an inheritance. While this may not be a legitimate concern for a guardianship matter, it is one which is often expressed or implied.
Residential decisions are also a concern. In particular, adult children who live far away may not have an understanding of any deficits of the respondent and may resist changes in the respondent’s living situation, believing that the move is unnecessary and too restrictive. Estate planning may be addressed, but courts are often loath to deal with pre-death will contests litigated in a guardianship matter.
At issue also may be sale of the respondent’s assets, including the residence or other real estate or even particular items of personal property. Family members may be unwilling to agree to sale because they wish to see certain property “remain in the family.” In order to protect a proposed guardian, it may be worthwhile to address the eventual sale of certain assets and determine if there is an alternative, including possible sale to family members.
Medical treatment decisions, particularly end-of-life decisions, can be very emotional, and it may be useful to try to reach accord among family members. Finally, who should serve as guardian is often a highly contested matter. Sometimes co-guardians are an option, or possibly all parties can agree on a particular nominee who is not the person nominated in the original petition.
Concerns about Mediating Certain Cases
Certain cases are not appropriate for mediation. Any case involving substantive allegations of abuse and neglect may not be appropriate for mediation. However, abuse and neglect are frequently alleged, particularly by interested parties aligned against the petitioner-caregiver, so a court visitor or guardian ad litem may wish to investigate the circumstances of the allegations in order to make an appropriate decision about mediation.
While many commentators have suggested that the capacity of the respondent is a concern, I believe this can be addressed in the context of the mediation, particularly if appointment of counsel for respondents is mandatory in mediated cases. Further, if the court is the final arbiter of the agreement and must make a determination about its appropriateness before making it a court order, the concern about the fairness of an agreement reached with an individual with diminished capacity is reduced. Still, in some cases the respondent will simply be unable to participate in mediation, and the question becomes whether other parties to the guardianship can still mediate their respective issues despite the respondent’s inability.
Commentators have raised concerns about privacy issues, but the confidential nature of mediation actually preserves privacy better than a court hearing. Nevertheless, the issue of confidentiality for the guardian ad litem needs to be addressed.
Longstanding family issues and participants with anger management issues are a great concern. However, mediators deal with such concerns in other specialty areas in mediation, including family law. Mediation training courses need to better address this issue.
Does the Court Simply Adopt the Mediation Agreement?
Because a guardianship hearing requires the finding of incapacity, a court cannot simply adopt a mediation agreement. Even if the matter turns from a contested matter to an uncontested matter, the court will still need to find incapacity by clear and convincing evidence. Moreover, the court has an obligation to review the agreement for fairness and determine if the agreement is in the respondent’s best interests.
Can Mediation Produce a Better Result?
In long-term follow-up studies on divorce mediation, researchers found that family relationships were stronger when parties mediated their divorce settlements, even when the parties did not choose mediation but were randomly assigned to mediation as opposed to adversary settlement proceedings. Because mediation offers the opportunity to reach agreement regarding contested matters, it is likely that mediation in guardianship proceedings could produce the same beneficial results as it has in family law. And family members dealing with aging parents benefit greatly from each other’s support; mediation’s tendency to strengthen family relationships can be of great value in guardianship cases.
The time constraints and adversarial nature of the guardianship hearing process are not likely to produce a thoughtful limited guardianship. Unlimited guardianship is more efficient for the court, both in terms of the initial hearing and of monitoring the guardian. Mediating guardianship appears to offer the potential for a better, more carefully considered, guardianship. Hopefully, research will show this to be true.
To become a viable model, adult guardianship–specific mediation training needs to become more widespread and readily available. Incapacitated adults are not simply wrinkled children, and the child custody/family law model of mediation and mediation training cannot simply be overlaid onto adult guardianship proceedings. Nevertheless, like the family law model, specialized mediation training and mediators can unclog court dockets, lessen family hostility, and create more favorable, client-centered results in guardianship matters.