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Mediation with a capital M

Mediation with a small “m”   or Mediation with a capital “M,” and what’s the difference?

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Elder Mediation

WHAT IS ELDER MEDIATION?

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.

WHAT IS THE BENEFIT OF ELDER MEDIATION?

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.

WHAT IS THE PROCESS OF ELDER MEDIATION?

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.

WHO IS QUALIFIED TO ACT AS AN ELDER MEDIATOR?

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.

CONCLUSION

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.

INVITATION

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.

TELL ME ABOUT FAMILY AND DIVORCE MEDIATION?

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, if all 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 is your signal that 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, there is a good chance that a mediator has more tools that can might help you.

The signature style of Just Mediation, LLC, is particularly suited to mediation of conflict in which relationships are key and where there are mutual, personal goals.  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 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:

MEDIATION

LITIGATION

Empowers parties to make their own agreement based on their own individual values, circumstances, and priorities Puts decision in hands of a stranger (a judge) who must impose ruling from outside in, and based on general legal principles
Is not adversarial.  Teamwork and collaboration is encouraged The parties are pitted against one another as adversaries
Parties can decide upon and 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

 

The mediators for Just Mediation, LLC, are skilled in many types of mediation, including mediation for extended families and organizations.  Our signature style of mediation is deeply committed to the idea of conflict transformation as an integral part of the experience of growing through the painful process of conflict resolution.  While there are many aspects of transformative type mediation, a significant aspect is that it is 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.  Using this approach, mediators for Just Mediation, LLC, help with many types of conflict, including not just divorce and parenting issues but also mediation and conflict coaching for extended families and for business and church organizations.

The principal of Just Mediation, LLC, Alexandria Skinner, trained in divorce mediation with Carl Schneider and Eileen Coen, a therapist-attorney team in Bethesda, Maryland.  The training offered by this duo equips mediators to deal not only in legal aspects of divorce but also with the emotional and psychological aspects of the divorce and family transition.  It also meets standards promulgated by the Association for Conflict Resolution as the starting point towards seeking certification as an Advanced Practitioner Family Mediator with that organization, a standard that is not met by any training offered in the State of South Carolina.  Ms. Skinner also received 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, and training as a community mediator (Beth Padgett through Community Mediation Center).  Additionally, as an attorney, Skinner has worked on a wide variety of cases through her 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.  She is also one of a handful of attorneys in South Carolina who is certified as an interdisciplinary collaborative professional by the IACP.

To request more information or a consultation, please fill out the contact form below.

What Is A Mediator?

The purpose of this post is to answer the question, “What is a mediator?”  A mediator is a trusted, neutral person who facilitates a process designed to empower parties to recognize find their own, satisfactory solutions to intractable conflict. Each word in the sentence above has important meaning.

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What Is Mediation?

The term mediation doesn’t describe a particular type of meeting.   It is more accurate to say that the term “mediation” describes a new and fundamentally different approach to conflict. 

Mediation is a collaborative and consensus building model of conflict resolution.   Instead of deciding a dispute between parties and making a ruling, as a judge or arbitrator does, a mediator will attempt to lead the parties to agreement among themselves. 

Thus, while mediation is typically described as a “meeting,” and mediation does indeed often take place in the context of a meeting, there are many different forms of mediation and many different types of meetings used in mediation.  

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The Magic of Mediation

When I am mediating, I sometimes find myself taking a bird’s eye view, and I am amazed.  Mediation works, and it often works almost like magic.  I’ve asked myself, what is it about mediation that is so special?  Is it some special trick that I do?  Is it a formula?  Is it convincing parties that they need to “settle” their case?  None of the above!

Yes, there is technique and skill involved in being a good mediator.  Yes, the personality of the mediator is important.   The amazing thing, though, is that none of these is the “magic” factor.  It is not “I” who resolves the issues.  It’s as if I’m merely a channel for something else, something deeper.  For, in actuality, the parties to mediation are the ones who help themselves.   While I do provide specific tools, processes, and an avenue for parties to work through conflict that otherwise they could not have resolved on their own, the fact is that once these tools are in place, the conflict sometimes almost seems to resolve itself.

The magic of mediation is the fact that it works so well.  Often, not only is agreement reached but both parties are happy, or at least feel that the conflict was addressed as well as it could be.  This level of satisfaction with the process and the outcome, and the “magic” of reaching agreement after months or years of intractable conflict, is even more astounding when one considers that the mediator does not impose their own judgment.  The parties come up with the solutions all by themselves.  (Self determination is actually a necessary part of authentic mediation.  The parties must have 100% “ownership” over the solution.)  And yet, the process is so powerful!  Something about mediation enables the parties to achieve a different level of consciousness, awareness, or cooperation.   Solutions come up that no one ever would have thought of before.

It was Einstein who said something like, “A problem cannot be solved by applying the same level of consciousness that created it.”  Sometimes I feel as if the parties are lifted up to a different level, as a result of the mediation process, to where they can have a different perspective, or a different kind of ability to see and understand their conflict.

Walking in the woods the other day, I came across a scene that reminded me of how I sometimes think about mediation.

Imagine you are walking through a swamp.  Conflict is like that swamp.

swamp

Conflict is not fun!  Conflict is not just cold and wet.  Conflict is also muddy and mucky.

As you wade into conflict, you don’t know how deep it is.  Even the shortest distance can become impassable.

You get bogged down in it.  It can even be dangerous.  You wonder, how to get out.

Often, parties to a conflict can’t see their way to a “win-win” solution.  They lack confidence that things can be worked out peacefully.  They are angry.  They don’t trust the other side.  They think they have to go to court and have a judge impose an outside solution, in order to resolve the conflict.

The good news is that if both parties will come to mediation, there’s a good chance that they can resolve the issues on their own.  For even the most difficult conflict, mediation actually provides a path.

The mediator doesn’t come up with the answers.  The mediator doesn’t do your work for you.

What the mediator provides is a process.  That process is like a boardwalk to help you get through it yourselves.

swamp boardwalk

The neutrality of the mediator, and the skill of the mediator in providing a process, provides a structure and a system that helps parties address their conflict in an understandable, even minded way.

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It gets you out of the mud and onto a dry spot where you can think and move forward.

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The point of mediation is that it helps you focus on where you need to be, where you want to go, what your long term goals are.  And then it helps you – both parties – find a way to get there.  Mediation provides parties with a neutral and fair mechanism to work through conflict.  Once parties find the bridge to agreement, the rest is often like magic.

Do you wish you could find an answer to painful or difficult conflict?  To explore whether mediation might be an option for you, fill out the contact form below:

Myths About Mediation

Myth #1: Mediation won’t work. 

Fact: Mediation does work, with lower cost and higher rates of satisfaction.  If you want courtroom drama, go to litigation.  If you want to resolve your conflict, choose mediation.  Explore this site more to learn how and why.

Myth #2:  Mediation is the same as arbitration

Fact:  No, mediation and arbitration are not the same at all.   Both are used as alternatives to court and both involve a neutral third party, but that’s where the similarity ends.  Arbitration is still set up as an adversarial model which places the decision in the hands of a third party.  Mediation is a non-adversarial, collaborative model in which the disputants reach their own, voluntary agreement. 

In arbitration, the neutral third party, or arbitrator, hears arguments from the parties in dispute, receives evidence, and makes a decision. Attorneys often speak for the parties, and the process is governed by rules of legal procedure and evidence.  Whether formal or informal, the procedure follows a legal model and the decision is made by a third party, not the disputants themselves. 

In mediation, the neutral third party, or mediator, encourages the parties in dispute to tell their stories, suggest their own solutions, and come to agreement on one of those solutions. The parties, not the mediator, make the decision. The parties generally speak for themselves, though attorneys or advocates may assist. The mediation process does not use legal procedures, and it is not governed by rules of evidence.  In mediation, every effort is made to foster an informal, conversational, and collaborative environment.

Myth #3: Mediation is a method for settling a lawsuit out of court.

False, for two reasons.  First, mediation can be used for any conflict, not just conflict that has resulted in a lawsuit.  Mediation principles are applied in settings as varied as peer mediation used to resolve student conflicts in elementary schools to international treaties brokered by neutral nations.  In fact, mediation has the greatest chance of success when used early, before a relationship has become so damaged that anyone would consider a lawsuit.  Second, mediation has potential not just to “settle” a case through resort to legal principles, but instead to heal conflict by addressing root causes.  Thus, mediation offers far more promise than mere settlement of a lawsuit.   To equate mediation merely with settlement of a lawsuit undervalues and trivializes the transformative and universal aspects of mediation as a peacemaking endeavor. 

Fact or Fantasy?

Nine Reasons to Mediate Your Conflict

1. Mediation keeps you in control.  In mediation, parties retain 100% control over their agreement, unlike court which puts matters into the hands of a stranger who may or may not share their values.  The mediator does not determine the outcome of the dispute – the parties do.

2. Mediation is private.   No one needs to know that you have gone to mediation. Though there are a few exceptions (like child abuse or threats of violence), pretty much nothing said during a mediation can be held against a party later in court.

3. Mediation is cost effective.  Both parties split the cost of the mediator as well as any experts that are required. But also, because it de-fuses conflict and help parties work together instead of against each other, mediation most likely requires fewer paid hours.

4. Mediation resolves the dispute . The parties to mediation generally agree that their agreement is enforceable in court, and there are fewer enforcement actions because a voluntary agreement is less likely to be challenged.

5. Mediation saves relationships.  Gain the satisfaction of knowing that a disagreement has been resolved in a peaceable manner.

6. Mediation is at your own pace.  Parties might reach agreement in one session, scheduled almost immediately. On the other hand, sometimes people need time to mull things over and adjust to ideas.  So long as the parties are moving forward with progress, mediations can be scheduled over several sessions, thus enabling all parties to sort out all options and come to peace with various solutions.

7. Mediation enables parties to be creative. Mediation enables parties to address root causes of conflict through every means available, including options or strategies that would not be available by way of court order.

8. Mediation allows you to communicate your position.  Unlike court, in which testimony is tightly controlled, mediation allows parties to air their dispute fully in a process which is designed to encourage each other to really listen, hear, and understand.

9. Mediation is low risk Mediation has an easy exit. If either party feels mediation isn’t working, the parties can return to the old way of doing things.

Need more information?  Click HERE for a more extensive article explaining what mediation is and what its benefits are, or HERE for a list of 20 reasons!

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ADVANTAGES OF MEDIATION: 20 Reasons To Mediate Your Conflict

Mediation is proactive.  Generally speaking, mediation provides a neutral mechanism to address conflict long before it escalates to the point of litigation.

Mediation keeps you in control.  In mediation, parties retain 100% control over their agreement, unlike court which puts matters into the hands of a stranger who may or may not share their values.  The mediator does not determine the outcome of the dispute – the parties do.

Mediation aims to be safe.  Mediation is a negotiation strategy that utilizes an expert trained in conflict skills who helps guide and direct the discussion between the parties.  The mediator is like an umpire who doesn’t let things get out of hand.

Mediation is confidential.   Mediation can be as private as you want it to be.  Though there are a few exceptions, nothing said during a mediation can be held against that party later in court.  In contrast to this, litigation creates a public record.

Mediation is informal.  Other than a small number of “ground rules” which are designed to keep order and enable everyone to be heard, the parties and mediator can be as informal as they choose.

Mediation is convenient.  It is always conducted in a neutral location, at a time and place that is convenient for you.

Mediation will not prejudice you.   The parties may obtain legal counsel at any time and do not lose any rights that may be provided to them under contract or law.

Mediation is voluntary.  Both parties must agree to participate, and any party may call it off at any time.

Mediation is cost effective.  Both parties split the cost of the mediator as well as any experts that are required. But mediation most likely uses fewer hours, as well.

Mediation resolves the dispute so you can put it behind you completely.   If the parties reach agreement, the mediator will arrange for drafting of a “Memorandum of Understanding” at the conclusion of the mediation.  Once signed by the parties, the “Memorandum of Understanding” is a contract between them which will be as binding and enforceable as the parties choose to make it.

Mediation helps parties address conflict without destroying their ongoing relationships.  For some parties, this is important.   For others, it is not.  Even when an ongoing relationship is not expected, it can give satisfaction to know that a disagreement has been resolved in a peaceable manner.

Mediation can be fast.  Because timing is in the control of the parties, parties can reach and implement an agreement at any time.  No more waiting and sleepless nights.

Mediation can be slow. Sometimes people need time to mull things over and adjust to ideas.  So long as the parties are moving forward with progress, mediations can be scheduled over several sessions, thus enabling all parties to sort out all options and come to peace with various solutions.  As much as possible, mediation aims to keep a pace that you are comfortable with.

Mediation enables parties to consider more issues than just money.  Often, money is not going to “fix” what really needs to be fixed.  Mediation encourages parties to address root causes of conflict and to address those causes through every means available.  The parties may also be willing to consider options or strategies that would not be available to a court.

Mediation allows you to communicate your position without actually going to court.  A high percentage of cases filed in court are settled prior to trial, with or without the aggrieved party ever getting to state his case.  If you go to trial, the highly structured nature of the adversarial process usually does not allow witnesses to say what is really important to them.  Cross examination is focused on pointing out weaknesses rather than initiating dialogue.  Mediation allows you to air your dispute fully in a process that helps you state your case and which is designed to encourage the other party to really listen and to hear your side.

Mediation de-escalates conflict.  Litigation polarizes the parties.  Mediation helps parties work together to meet common goals and to find fair solutions when common goals cannot be met.

Mediation coaches in valuable negotiating techniques.  Through experiencing and practicing negotiation as coached by the Mediator, the parties gain practice and skill in de-escalating conflict and in collaborative problem solving.

Mediation is less stressful.  Mediation seeks to find win-win solutions rather than “I win, you lose” solutions.   The judicial definition of “winner” also does not take into account the tremendous cost of risk, stress, and attorney fees from protracted litigation.

Mediated agreements tend to stick because all parties have ownership and feel solution is fair.

Mediation is low risk Mediation is not a train that you can’t get off:  if you try mediation and feel it isn’t working, you can always go back to the prior way of doing things.

What have you got to lose by trying?  To schedule an initial consultation, call 803-414-0185 or fill out the contact form on this site.

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