There is an alternative to going to court when individuals or businesses are in conflict. Mediation can be not only less expensive and divisive than traditional lawsuits, but also carry the weight of a court ruling.
Attorney Christine Pate says mediators are not judges.
“If two or more people have a dispute, they may be thinking about taking it to court. Mediation is a form of alternative dispute resolution. You may have one or two mediators assisting the parties to facilitate an agreement. I think the term is that the ‘mediator owns the process, and the participants own the content.’ So the mediator doesn’t really make decisions for the parties, they just help them reach an agreement.”
Bosman also says mediation can be far less expensive than going to court.
Still, most people who end up in mediation are referred by the court system. There are two mediation programs within the state courts: Child Custody and Visitation, and the relatively new Adult Guardianship and Conservatorship, which is designed to settle disputes involving “vulnerable” adults over the age of eighteen. But Bosman says mediation is useful over a spectrum of issues.
“Almost any type of dispute can be mediated. There are certainly a few exceptions to that. One would be child abuse or neglect; the issue of domestic violence itself can’t be mediated; also criminal guilt cannot be mediated. Beyond that, mediation is used in a broad realm of issues: labor disputes, property disputes, all kinds of domestic disputes.”
[Attorney Corrie]Bosman also says mediation can be far less expensive than going to court. Still, most people who end up in mediation are referred by the court system. There are two mediation programs within the state courts: Child Custody and Visitation, and the relatively new Adult Guardianship and Conservatorship, which is designed to settle disputes involving “vulnerable” adults over the age of eighteen. But Bosman says mediation is useful over a spectrum of issues.
And, according to Christine Pate, people leave mediation feeling better about a decision than they do in a court setting – especially in domestic disputes. Arguments are exchanged in court; in mediation it’s all about dialogue.
“Almost any type of dispute can be mediated. There are certainly a few exceptions to that. One would be child abuse or neglect; the issue of domestic violence itself can’t be mediated; also criminal guilt cannot be mediated. Beyond that, mediation is used in a broad realm of issues: labor disputes, property disputes, all kinds of domestic disputes.”
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Mediation Offers Resolution (and Solutions) Without Court
I think mediation is a bad idea.
ReplyDeleteWhere is the oversight and mediation is run by attorneys and the goal is for them and their friends to be the guardians.
Why dress up a wolf like a sheep.
This is bizarre ....... do you think Nursing homes, Social Services and attorneys are going to settle for anything where they don't make lots of money from.
Mediation for the family ....... take all the money you want from our family member ........this is a racket ...... one more vehicle for a judge to demand the alleged ward to spend money on.
Mediate; don't litigate!
ReplyDeleteThen legislate.
Legislate ............ mediation is a disaster in NJ in the Probate and Divorce Courts.
ReplyDeleteDo you think that Families have a chance at coming to compromises with professional guardians
Valley Hospital sought the appointment of a special medical guardian to consent to life-saving dialysis treatment for J.M., a 42 year old Jamaican home health aide with end-stage renal disease. J.M.’s treating physicians indicated that dialysis was immediately necessary to save J.M.’s life, but J.M. refused dialysis treatment against medical advice. The hospital filed a Verified Complaint, claiming that J.M. lacked the mental capacity to consent to the medical treatment that she needed.
The court appointed an attorney to serve as J.M.’s legal counsel. After conducting an investigation, J.M.’s attorney filed a report which recommended that a special medical guardian be appointed by the court so that dialysis treatments could begin. The attorney’s recommendation was contrary to J.M.’s wishes. Upon receipt of the report, the court appointed a second attorney to represent J.M., and stated that, as J.M.’s legal counsel, the second attorney was required to advocate for J.M.’s expressed wishes. The first attorney was discharged as J.M.’s legal counsel because, in recommending that a special medical guardian be appointed against J.M.’s wishes, the first attorney had acted as a guardian ad litem rather than legal counsel for J.M.
In explaining the difference between a court-appointed counsel for an alleged incapacitated person and a guardian ad litem and why the court appointed a second attorney to represent J.M. after receiving the first attorney’s report, the court stated:
In competency matters, the court-appointed attorney’s role is to prepare a report after interviewing knowledgeable persons and investigating the situation. The attorney represents the alleged incapacitated person … as he or she would in any other legal dispute. … [T]he attorney writing the report to the court will advocate the wishes of the patient… While the attorney must be a zealous advocate, there are limits to his representation when “the decisions [of the alleged incompetent] are patently absurd or pose an undue risk of harm.” When such a situation arises, or other circumstances exist, the court may appoint a guardian ad litem in addition to the court-appointed counsel. The role of the guardian ad litem is to act as “eyes of the court” and further the best interests of the patient, even if those interests may differ from what the alleged incapacitated person wants. … However, although appointed as counsel, [the first attorney], in fact, advocated the best interests of J.M. as would a guardian ad litem …. Thus, [the second attorney] was appointed after [the first attorney’s] report was received to represent J.M. to advocate J.M.’s expressed views. [citations omitted]
The court ultimately found that J.M. was, in fact, incapacitated. A special medical guardian was appointed, and dialysis was provided which saved J.M.’s life.
Judge Koblitz’s written opinion is attached here - In the Matter of J.M. for the Appointment of a Special Medical Guardian
End Stage Renal Failure and she could not refuse treatment. We are a Hitler State
Mediation means the alledges ward have no rights. It gives predators one more way to steal money
Lesgislate
ReplyDeleteMediation is a disaster in the Family courts and Divorce courts -
Guardianships are illegal legal instruments
Valley Hospital sought the appointment of a special medical guardian to consent to life-saving dialysis treatment for J.M., a 42 year old Jamaican home health aide with end-stage renal disease. J.M.’s treating physicians indicated that dialysis was immediately necessary to save J.M.’s life, but J.M. refused dialysis treatment against medical advice. The hospital filed a Verified Complaint, claiming that J.M. lacked the mental capacity to consent to the medical treatment that she needed.
The court appointed an attorney to serve as J.M.’s legal counsel. After conducting an investigation, J.M.’s attorney filed a report which recommended that a special medical guardian be appointed by the court so that dialysis treatments could begin. The attorney’s recommendation was contrary to J.M.’s wishes. Upon receipt of the report, the court appointed a second attorney to represent J.M., and stated that, as J.M.’s legal counsel, the second attorney was required to advocate for J.M.’s expressed wishes. The first attorney was discharged as J.M.’s legal counsel because, in recommending that a special medical guardian be appointed against J.M.’s wishes, the first attorney had acted as a guardian ad litem rather than legal counsel for J.M.
In explaining the difference between a court-appointed counsel for an alleged incapacitated person and a guardian ad litem and why the court appointed a second attorney to represent J.M. after receiving the first attorney’s report, the court stated:
In competency matters, the court-appointed attorney’s role is to prepare a report after interviewing knowledgeable persons and investigating the situation. The attorney represents the alleged incapacitated person … as he or she would in any other legal dispute. … [T]he attorney writing the report to the court will advocate the wishes of the patient… While the attorney must be a zealous advocate, there are limits to his representation when “the decisions [of the alleged incompetent] are patently absurd or pose an undue risk of harm.” When such a situation arises, or other circumstances exist, the court may appoint a guardian ad litem in addition to the court-appointed counsel. The role of the guardian ad litem is to act as “eyes of the court” and further the best interests of the patient, even if those interests may differ from what the alleged incapacitated person wants. … However, although appointed as counsel, [the first attorney], in fact, advocated the best interests of J.M. as would a guardian ad litem …. Thus, [the second attorney] was appointed after [the first attorney’s] report was received to represent J.M. to advocate J.M.’s expressed views. [citations omitted]
The court ultimately found that J.M. was, in fact, incapacitated. A special medical guardian was appointed, and dialysis was provided which saved J.M.’s life.
Judge Koblitz’s written opinion is attached here - In the Matter of J.M. for the Appointment of a Special Medical Guardian
What was she supposed to mediate.
The judge forced treatment on this woman.
In my own case, mediation was a farce! The first attempt to mediate was after the Defendant was deposed. If you read the transcript of that deposition, which is posted online at http://home.roadrunner.com/~tvfields/Shirley_Depo/Frameset001.htm, you'll understand why my lawyers and I thought we could end the case then. But the mediator declared that the evidence had no place in mediation! All that mattered, according to the mediator, was how much each party could lose. Having said that, he then recommended we settle by giving the Defendant FIVE TIMES what she (and her daughter) had stolen -- or even asked for!!!! In other words, they stole 10% of my father's estate, and the mediator suggested we split the estate 50-50!!! What a racket!
ReplyDeleteI think mediation is the way to go but you have to be prepared to compromise and talk. And the problem is that many if not most people don't come to the table to listen. So, it's really, really important that a good mediator is doing the mediating.
ReplyDeleteJust think, if battles were settled out of court, the predators might have to find honest work!
ReplyDeleteIf the laws in place were actually followed 99% of the time the cases would not be in court.
ReplyDeleteThe true definition of incapacity and the true reason for a guardian
and the rights of the family.
A guardianship should not cost more than 1% of a person's income or $5000.00 whichever is less tha would stop the nonscense.
Guardianships are not supposed to be used to force adults into medical treatment.