Mediation with a small “m” or Mediation with a capital “M,” and what’s the difference?
It’s a matter of style and paradigm. Read More
It’s a matter of style and paradigm. Read More
The term “Elder Mediation” generally refers to mediation of matters relating to care or financial decisions of a vulnerable adult. When families have disagreement concerning care for a person who has diminished capacity to make decisions or to care for themselves, a specially trained mediator is needed. Like all mediation, key goals are to facilitate communication, to reduce barriers to agreement, and to empower the parties to make good decisions that reflect their shared values and ideals. The mediator must have skill, however, to manage communication among multiple parties, to incorporate insights from experts such as attorneys, guardians ad litem, and care managers, and also to include the Elder themselves in discussions to the fullest extent possible. Some common issues addressed during Elder Mediation include: (1) planning for future financial or physical care, estate planning, business succession planning, and advance care planning; (2) making decisions during a crisis; and (3) mediation to settle disputes involving probate matters.
When a family is not in agreement, a meticulously prepared care or estate plan can be destabilized by just one family member who challenges or undermines it. Mediators help everyone get on the same page, so that second guessing is less likely. The mediation process helps ensure that decisions and planning take into account all interests, is realistic, and is based on a unified family agreement. The fact that authentic agreement is reached helps restore peace within the family and reduces the likelihood of later challenge.
First, the mediator will interview all parties and learn more about the issues involved. Then the mediator will convene one or more meetings and act as moderator to guide the meetings. The mediator will help everyone stay focused on the most important issues, will make sure that conversation is respectful and that everyone has an opportunity to be heard, and will assist the parties reach an agreement that everyone can live with. The confidentiality of mediation is protected by strict rules regarding confidentiality, and all agreements must be voluntary. At the conclusion of the mediation, if agreement is reached, the mediator will present a summary of the points agreed on by the family. The mediated agreement can be as simple as a checklist or as complex as a legal settlement agreement, depending on the needs of the parties.
At this time, mediation is not regulated as a profession, so it is important to look carefully at the skill and training of each individual mediator. While many Elder Mediators are attorneys by training, many highly skilled mediators have come into the field by way of their specialized background in gerontology, nursing, social work, or counseling. Knowledge of elder law is important, as is knowledge about common geriatric and competency issues, family dynamics and the psychology of extended families, and skill in mediation involving multiple parties and outside professionals. Look for signs that the potential mediator has expertise in (1) legal and financial issues of aging (financial planning, care planning, business succession planning, guardianship or probate administration), (2) multi-party, complex mediation (siblings, in-laws, and grandchildren all may be stakeholders and necessary parties to a mediation), and (3) legal issues related to competency and capacity (an Elder Mediator must take special precaution to ensure that the aged person, who may be a vulnerable adult, is accorded as much autonomy and decision making deference as his or her physical and mental capacity will allow). Ideally, a mediator will have completed an advanced training specifically in Elder Mediation.
As difficult as conversations about Elder issues may be, wise is the family that has them. While honesty, candor, and open conversation may be challenging, the more fully the issues are discussed, and the better the quality of conversation, the better the result will be. Yes, Elder Mediation may be time consuming, complex, and expensive. Several meetings are often required, and two mediators may need to be involved when there is a large group. Yet, consider the costs to the Elder and their family, in both human and financial terms, if agreement is not reached.
Unresolved issues involving a vulnerable adult will not go away if ignored. T hey will only get worse. Failing to reach a unified plan can result in preventable illness or accidents, lack of family support for a caregiver, financial exploitation, loss of a business or livelihood due to failure to plan for contingencies, distrust and alienation, failure to communicate, incorrect assumptions, escalating conflict, anger, and financial resources being poured into litigation. The consequences of failing to address underlying issues can cost not just money, but also relationships in the family and quality of life for the Elder.
In contrast, a family that works as a team is more likely to maintain the physical, mental, emotional, and financial health of all parties involved. It can be tempting to pretend nothing is wrong (one extreme) or to fight with each other (another extreme). In the middle, there is a middle ground called mediation. This middle way – the way which acknowledges conflict and yet has the courage to work through the issues to find authentic peace — is, by far, the best and most cost effective option for most families.
In addition to her professional training in general facilitative mediation, family mediation, and community mediation, Alexandria Skinner has trained specifically as an Elder Mediator with nationally recognized mediators Zena Zumeta and Susan Butterwick of Ann Arbor, Michigan. In addition, Skinner has studied mediation for extended family groups at the Lombard Mennonite Peace Institute in Lombard, Illinois, and she is certified as a collaborative professional with the International Academy of Collaborative Professionals (IACP). To support her commitment to helping families have better relationships and better solutions for Elders, Skinner also has been active as a volunteer with the Elder Section of the Association for Conflict Resolution since 2009 and, in that capacity, has assisted in selection of topics, preparation of, and facilitation of numerous educational programs for professional mediators on the subject of elder mediation. If you would like to discuss a potential issue involving elder mediation, either a need for mediation or an academic or professional interest, please fill out the form below or call 803-414-0185.
There are many reasons to mediate to resolve a family conflict or to attempt mediation prior to filing papers in a court action. First and foremost, mediation does not pit parties against one another as adversaries. Whether parties are seeking a divorce, a change in child custody, or a viable solution to meeting daily needs of an elderly family member, mediation offers an opportunity for the people affected to work as a team, on the same side of the negotiating table, to address the challenges their family will face as they transition to a new way of being or living.
When parties file papers in a lawsuit, they effectively are removing themselves from the position of authority and asking a judge to decide their case for them. Mediation, in contrast, keeps the parties in control. It empowers parties to clarify their own values and priorities, reach agreement about these values and priorities whenever possible, and implement solutions that are based on those values. A good mediator will also help the parties expose and face the monsters in the closet, in an effort to ensure that solutions agreed upon are workable and sustainable.
Mediation also opens the door for a world of creative possibilities in addition to the standard solutions that could be ordered by a court. When you hear of divorced parents who are able to seamlessly parent their children, or of a family that has all come together to manage care for an elderly family member, or a church that has done a great job balancing the competing needs and interest of various interest groups within the congregation, it is likely that the positive relationship has been made possible by good conflict resolution mechanisms (as opposed to not having a conflict mechanism and then fighting in some positional, adversarial mode of conflict such as court).
A good mediator is a skilled professional, using conflict resolution skills and coaching the parties as they meet, to help neutralize the negative and awkward aspects of communicating during conflict and to build upon and emphasize the positive. In a real sense, the mediator acts like a bridge, helping the parties get through the swamp of conflict to reach authentic, sustainable agreement that everyone can live with.
Almost every conflict professional, even seasoned trial lawyers, will admit that voluntary agreements are usually better overall for every one, provided that all parties to the mediation are committed to principles of fairness.
To make an appointment to discuss your individual needs and circumstances, please fill out the contact form, below, or call for an appointment 803-414-0185.
My passion is to help individuals and families live more peaceable, happier and healthier lives. Ideally, people live within the nurture and protection of a larger family unit. As we age, we remain independent as long as possible, but it is a fact of life that sooner or later, everyone will depend upon others to some degree. When a person becomes so incapacitated that they can no longer care for themselves, make decisions, or manage their business affairs, sometimes a crisis ensues. The event giving rise to the crisis may be a fall, or a stroke, or an automobile accident. If sufficient legal and care planning has been done, families know who is designated as being responsible, there are clear lines of authority, and there are mechanisms for accountability. Implementing legal documents to ensure this is the reason everyone needs a consultation with a good elder law attorney. But sometimes, planning has not been done, or sometimes there may be concern that authority granted under those documents is being abused. In worst case scenarios, there may even be concern that the Elder may be subject of physical, mental, or emotional abuse.
When families encounter difficulties or challenges, the first line of hope is to draw upon resources of the family to reach agreement and a good care plan. I trained in the field of Elder Mediation with Zena Zumeta and Susan Butterwick, attorney mediators in Ann Arbor, Michigan whose careers have been devoted to mediation of family and organizational conflict. I have also been active in the Elder Decisions section of the Association of Conflict Resolution since the inception of the Elder section of ACR in 2009. As a mediator, I am always hopeful for a family to reach agreement. On the other hand, sometimes this is not possible or there may be an emergency. It has happened that in several cases I have been consulted in with regard to mediation, there has been a concern that the elder was being abused. In some cases, there has been an emergency situation requiring prompt action to protect the Elder from harm. As a result of the need in these cases, I began practicing in the area of adult guardianship and conservatorship, which in South Carolina are two distinct actions in probate court.
If you have concern for the safety or care of a vulnerable adult, or if you are a caregiver trying to manage care in the context of a family that is in conflict, please feel free to contact me, either by calling 803-414-0185 or by using the form below.
What, is mediation, and what makes it such a positive tool for conflict resolution within families? I hope to explain mediation and its benefits in this post. Mediation is often described as a “meeting” in which the parties meet with a neutral mediator who helps them reach agreement. Having a face to face meeting between two parties is common, but it is only one from among a wide range of options for mediation. Sometimes parties to a mediation do not meet together at all. Sometimes they meet numerous times. Some forms of mediation will involve an entire extended family or organization. Using modern technology, mediation can also take place internationally or over long distances. The key element of all these variations of mediation is that the parties utilize a neutral facilitator who guides a process designed to help them reach their own, voluntary and authentic agreement.
Mediation seeks to give parties tools they need to resolve their own dispute, using whatever information they believe is relevant, based on their own values and circumstances, and reaching an agreement that is truly their own and which they feel is fair and workable. Does it sound too good to be true? It’s not. The beauty of mediation is that, when parties are mutually committed to fairness, mediators have a large toolbox of conflict resolution skills and processes which can be utilized to help parties reach authentic, fair agreements that everyone can live with.
Sometimes individuals, families, or organizations wonder how they can possibly reach agreement, if they are stuck at an impasse already. The answer is that your impasse is not the end of the story. When you reach your own dead end and aren’t sure where to turn next, that means it’s time to call in a mediator, to see if they can help. The mediator is a professional who has many tools to help parties overcome barriers to agreement. Even if the strategies you have already employed have not resulted in a solution, it is likely that a mediator has more tools that can help you.
Divorce mediation is a key component of my practice, but my practice is devoted to all manner of conflict where relationships are key and where there are mutual, personal goals. I’m certified by the South Carolina Supreme Court as a Family Court mediator, but this is only the beginning of the story where my credentials as a mediator are concerned. Mediation within the court system is focused on cases already in litigation, involving only two parties, and focused exclusively on settlement of “this” case. While settlement through mediation in these cases is generally far preferable (for many reasons) to resolution through courtroom battle, it does dis-service to mediation if it is seen merely as a tool for settlement of an adversarial, litigated case. Mediation offers so much more. Mediation need not be seen as a step along the way in the legal process. Rather, mediation offers a distinctive and different paradigm for addressing conflict, with many benefits. Here is a chart that highlights a few of the differences:
|Empowers parties to make their own agreement based on their own individual values, circumstances, and priorities||Puts decision in hands of a stranger who must impose ruling from outside in, and based on general legal principles|
|Teamwork and collaboration is encouraged||The parties are pitted against one another as adversaries|
|Parties can implement custom tailored, win-win solutions||The judge making the decision in the case is limited to a set range of options|
|Parties can communicate what is important and mutually hear what is important to the other side, without regard to whether evidence would technically be admissible in court||Because the judge can only base a decision on reliable, probative evidence, much effort is made to keep the judge from hearing or seeing “unreliable” evidence|
|Parties may decide mutually to engage neutral experts to assist in formulating solutions||Each party hires an expert to “prove” their case is right and the other is wrong|
I am skilled in many types of mediation, including mediation for extended families and organizations. My signature style of mediation is called conflict transformation. While there are many aspects of transformative type mediation, a significant aspect is that I will be focused not just on “settling” a case, but on helping you — the parties — find solutions that are authentic to your values and circumstances and also which will be workable and sustainable for you in the long haul. I am skilled in many types and forms of mediation, including mediation for divorce and parenting issues but also in mediation and conflict coaching for extended families and for business and church organizations.
I trained in divorce mediation with Carl Schneider and Eileen Coen, a therapist-attorney team in Bethesda, Maryland, because I wanted the best training available, training which equipped the mediator not only in legal aspects of divorce (with which I was already familiar) but also with the emotional and psychological aspects of the divorce and family transition. My training also met the standards promulgated by the Association for Conflict Resolution as the starting point towards seeking certification as an Advanced Practitioner Family Mediator with that organization. (There is no divorce mediation training offered in South Carolina which accredited to meet published educational standard for this training.) I have additional and specific training in mediation of elder care disputes (Zena Zumeta and Susan Butterwick of Ann Arbor, Michigan), church conflict and disputes (Richard Blackburn of Lombard Mennonite Peace Center), special education issues (Cotton Harness through S.C. Department of Education), facilitative style mediation for certification as a S.C. Circuit Court mediator (my initial 40 hour training), and training as a community mediator (Beth Padgett through Community Mediation Center). As an attorney, I have worked on a wide variety of cases through my former work as an appellate court law clerk and staff attorney and as a lawyer for state government working on civil, criminal, and administrative cases and issues. I am also one of a handful of attorneys in South Carolina who is certified as an interdisciplinary collaborative professional by the IACP.
The most common scenario for people to consult with me about mediation is when they anticipate getting a divorce. I would like to say a word specifically about mediated divorce. There is a world of difference between “mediated divorce” and “divorce mediation.” Let me explain. The paradigm of mediation is neutral and non-adversarial. The parties to mediation are engaged in common search for resolution of their conflict, but they are not adversaries. The parties to litigation, in contrast, are pitted against one another in an adversarial, “A versus B” mode. Mediation is used in litigated divorce, but within this already-hostile context, to settle the case. Mediation in a mediated divorce, in contrast, never pits the parties “against” one another. The parties can cooperate and act as a team, even though they are divorcing, to formulate the best possible solutions available for their family in the changed circumstances. The focus of my family practice is not mediation within the context of litigated cases, but rather mediation as a model for helping families address challenging conflict, which may or which may not involve court action, depending on the individual needs and circumstances of each case. When cases are in adversarial mode already, I am happy to assist in settlement. However, most people who come to me for divorce mediation are operating in the non-adversarial paradigm.
If this sounds good to you, be aware that a mediated divorce is not going to happen unless you are pro-active to seek it. If a party seeking resolution of family conflict consults first with an attorney who tells them they need to “file papers,” this means that the attorney already is in the mindset of asking a court to decide the case for you. Filing papers in court takes power away from you to resolve your case and places that power in the hands of the judge. It also sets you up to require the expert assistance of the attorney to manage the process.
If you are considering a mediated divorce, I encourage you to call and arrange a face to face meeting to discuss mediation as soon as possible. Ideally, both spouses should be involved in this decision process. (If you have not discussed divorce with your spouse, then you are likely not ready to consult with a divorce mediator. I suggest that if you have not yet broached this idea with your spouse, a marriage and family therapist is the appropriate professional for you to speak with at this time. I can refer you to appropriate professionals if you don’t know one already.) Ideally, parties will get help from a mediator after they have decided to divorce, but before conflict has become overheated and intractable.
In my office, there is never a high pressure sales job to mediate. My goal is not to convince everyone that they should mediate their case. In fact, some cases should not be mediated. My goal is for mediation to be available as an option in cases where it is a positive, powerful tool for helping families achieve healthy answers for tough family decisions.
To schedule an appointment, call 803-414-0185, or fill out the contact form below.
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