Methodologies for Elder Mediation


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  • Very helpfu. Nicole please i will appreciate if you send me some infomation about elder mediation etc. Remain blessed. Emmy from Poland
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Methodologies for Elder Mediation

  1. 1. Methodologies in Elder Mediation Presentation to CLE BC Elder Mediation Course Wednesday, May 16, 2012 1By Nicole Garton-Jones, B.A., LL.B. /J.D., FMC Cert. CFM
  2. 2. What is Mediation?• “ The process by which the participants together with the assistance of a neutral person or persons systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs"• In short, a mediation is designed to settle or resolve a dispute. 2
  3. 3. Core features of any mediation:• A process or a method;• In which the relevant parties and/or their representatives;• With the assistance of a third-party, the mediator;• Attempt, through discussion and negotiation, to make decisions;• Which the parties can agree to.In essence, any mediation can be thought of as a process offacilitated decision-making or facilitated negotiation. 3
  4. 4. Variable Features of Any Mediation• The degree to which it is entered into consensually or is mandated by the legislature, courts or contract;• The extent of the parties choice of mediator;• The qualifications, expertise and skills of the mediator;• The independence and neutrality of the mediator; 4
  5. 5. Variable Features of Any Mediation, cont. The extent and nature of the mediators interventions; The mediators responsibility towards the parties, outsiders and standards of fairness and reasonableness;• The extent to which it has a therapeutic or educative function; 5
  6. 6. Variable Features of Any Mediation, cont.• The degree of confidentiality of the process;• The extent and nature of the rules and procedures followed;• The status of any settlement outcome;• The extent to which past controversies are canvassed and future interests are taken into account. 6
  7. 7. What is Elder Mediation?• the mediation of disputes that arise in the context of aging;• One or more of the parties will be an older adult or the issues in dispute will be ones of particular significance to older adults;• The issues and parties are often intra-familial, but can involve third parties such as housing providers;• tends to be multipartite and involve family and intergenerational dynamics. 7
  8. 8. What is Guardianship Mediation?• the use of mediation in guardianship proceedings to resolve disputes related to the decision-making capacity of an adult;• While the respondent in a guardianship application is often an elderly person, adult guardianship is not restricted to the elderly and guardianship mediation is not exclusively a subcategory of elder mediation; 8
  9. 9. Unique Components of Elder andGuardianship Mediation:• Issues at hand• Specific ethical challenges, including whether the older person should participate at all 9
  10. 10. Models of Mediation• generally thought to be four overlapping, though different, models of mediation: – Settlement; – Facilitative; – Therapeutic/transformative; and, – Evaluative. 10
  11. 11. Settlement Model of Mediation• intended to encourage incremental bargaining towards a position of compromise;• mediator will tend to accept the self-definition of the dispute provided by the parties;• function of the mediator is to determine the bottom line positions of the parties and through interventions of varying degrees of persuasion and encouragement, to move the parties off these positions to a point of compromise;• mediator likely to be a high status individual and will not necessarily have a high level of proficiency in the process and techniques of mediation. 11
  12. 12. Facilitative Model of Mediation• process is intended to focus on the parties underlying needs and interests;• function of the mediator is to prevent the parties from lapsing into incremental bargaining by continually emphasizing their interests, by drawing attention to common or mutual interests, by encouraging value creation, and by fostering creative settlement options;• mediator will not suggest solutions or direct proceedings, but will assist the parties to make a reappraisal of the situation and reach a practical settlement of their own;• Mediator likely to be an expert in the mediation process and techniques and may also have knowledge of the subject- matter in dispute. 12
  13. 13. Therapeutic/Transformational Model ofMediation• intended to deal with underlying causes of the parties problem as a basis for resolution, as opposed to mere settlement, of the dispute;• Resolution implies some degree of reconciliation between the parties;• function of the mediator is to diagnose the causes of conflict and to work through the psychological and emotional aspects of the conflict so that the parties come to terms with its root causes;• an expectation that the mediator will have expertise in counseling and in mediation techniques. The emphasis is on therapy, either at the pre-mediation stage or during the mediation process. 13
  14. 14. Evaluative Model of Mediation• an expectation from the parties that the mediator will use expertise and experience to direct the settlement towards the anticipated range of outcomes for the particular dispute;• Focus on rights and substantive interests• A sub-set of evaluative mediation is advisory mediation in which the mediator is asked to make recommendations as to how the dispute should be settled in the event of the parties being unable to reach agreement. 14
  15. 15. • recent commentary has pointed out that most mediators draw on a number of different models and are not restricted to one particular model in their mediation techniques 15
  16. 16. Recommended Models for Elder andGuardianship Mediation• The Report, in its recommendations for any court- connected guardianship mediation program, stated that it should utilize a non-evaluative, interest-based mediation model. The Report further stated that most experts recommended a facilitative style mediation;• The Report also noted that one of the strongest consensuses amongst experts and stakeholders was the need for pre-mediation meetings with each mediation participant as part of any elder or guardianship mediation model. 16
  17. 17. Why Pre-Mediation Meetings?• help to ensure that the voice of the older adult is included in the mediation;• enable the mediator to identify and better understand family and relationship dynamics;• provide the mediator with the opportunity to identify any potential power imbalances in advance of the mediation session, as well as screen for abuse. 17
  18. 18. Why Pre-Mediation Meetings, cont.:• provide the mediator with the opportunity to explain the process to the parties, including roles, rights and responsibilities, as well as establish a relationship of trust prior to the joint mediation session;• mediator can help parties identify issues for mediation in advance of the mediation. 18
  19. 19. Why Pre-Mediation Meetings, cont.:• provide the mediator with the opportunity to identify potential non-party participants who may be valuable or necessary to the success of the mediation;• provide the mediator with the opportunity to assess the capacity of each party to participate in the mediation and any supports needed. 19
  20. 20. Co-mediation• where two or more parties act as mediators;• provides the opportunity to achieve a representational balance in the mediation team;• Balance can be particularly important where there are value conflicts arising from differences of age, gender, religion or culture;• Report recommends co-mediation as an ideal model for the multi-party and multi-issue milieu of elder and guardianship mediation, if resources permit. 20
  21. 21. Benefits of Co-Mediation• allows the co-mediators to model good communication and negotiation skills between themselves;• allows for a division of labour, e.g. between active listening and recording, focusing on substantive and psychological issues;• allows for specialist expertise, e.g. having a skilled mediator and a practitioner from the subject area of the dispute; 21
  22. 22. Benefits of Co-Mediation, cont.• provides an apprenticeship system for new mediators;• provides each co-mediator with strategic and moral support;• encourages rigorous debriefing of and reflection on the mediation. 22
  23. 23. Disadvantages of Co-Mediation• There can develop a good/bad cop routine between the co-mediators;• Successful co-mediation requires training, thorough preparation and compatibility between the parties;• Conflict between co-mediators might disrupt the process; 23
  24. 24. Disadvantages of Co-Mediation, cont.• Co-mediation might take longer and be more expensive for the parties;• There no independent evidence to suggest that co-mediation produces a higher settlement rate;• Each side might perceive one of the co- mediators as their champion. 24
  25. 25. Multi- Party Mediation Methodology 25
  26. 26. Multi- Party Mediation Methodology• Lawrence E. Susskind and Jeffrey L. Cruikshank in Breaking Robert’s Rules set out an effective methodology for multi-party dispute resolution• a consensus building approach can yield agreements that satisfy the competing interests of many parties, save time and money and improve long-term relationships. 26
  27. 27. Consensus building: A five-step process1. Convene the group2. Assign Roles & Responsibilities3. Facilitate Group Problem Solving4. Reach Agreement5. Hold Parties to Their Commitments 27
  28. 28. 1. Convene the group• Initiate discussion• assess the issue(s) to be addressed• identify appropriate parties at the table (should the older person participate? If not, should the mediation proceed? If so, how should the older person participate?)• Decide whether to commit to a consensus building approach (“CBA”)• ensure all parties agree with the process 28
  29. 29. 2. Assign Roles & Responsibilities• Specify who will take responsibility for convening, facilitating, recording, mediating/facilitating meetings, representing key parties and providing expert advice, if any required• Set rules regarding the involvement of alternates and observers• Finalize the agenda, ground rules, plan and budget in writing• Assess options for communicating with the parties present, as well as parties not present 29
  30. 30. 3. Facilitate Group Problem Solving• Strive for transparency• Seek expert input where appropriate• See to maximize joint gains through brainstorming• Separate inventing from committing• Use the help of a skilled facilitator• Use a single text procedure• Modify the agenda, ground rules and deadlines as you go 30
  31. 31. 4. Reaching Agreement• Seek unanimity on a written list of commitments• Use contingent commitments, if appropriate• Adhere to agreed upon decision-making procedures• Ask who can’t live with the proposed solution 31
  32. 32. 4. Reaching Agreement, cont.• Ask those who object to suggest improvements that would make the package acceptable to them without making it unacceptable to others;• Keep a written record of all agreements;• Maintain communication with all relevant parties;• The goal is unanimity, but overwhelming agreement is sufficient. 32
  33. 33. 5. Holding Parties to Their Commitments• Seek ratification by checking back with all relevant constituencies• Ask all parties to indicate their personal support by signing the proposed solution• Present the recommended solution to those with authority to act• Look for ways to make informally negotiated agreements binding• Reconvene the parties if those in authority cannot live with the solution• Monitor changing circumstances during implementation and reconvene if necessary 33
  34. 34. Being a Good Facilitator:• Assessing, with the participants, the situation and determining whether CBA is appropriate• Designing, with the participants, ground rules, a work plan and other mechanisms to guide the process• Managing relationships and communication among the participants (and with their constituencies) 34
  35. 35. Being a Good Facilitator, cont.• Training the participants in negotiation and consensus-building skills (if they request such assistance)• Facilitating meetings, assisting in preparation for meetings and preparing summaries of meetings• Respecting confidentiality in all interactions with stakeholder participants and with the convener 35
  36. 36. Being a Good Facilitator, cont.• Enforcing the ground rules agreed upon by the participants, including confronting any participant (or observer) who is not abiding by ground rules• Mediating specific issues, including shuttling back and forth among the participants clarifying interests and positions• Fact-finding in relation to a specific issue in circumstances where the participants are comfortable with that arrangement, including organizing expert reports 36
  37. 37. Being a Good Facilitator, cont.• Preparing a written draft (“single text”) containing the final solution and sounding out the participants on their willingness to “live with” the agreement• Ensuring that the participants check back with their constituents and sign a statement indicating their personal support for implementation of the agreement• Monitoring implementation and the need for possible modifications to the agreement• Reconvening the parties, following procedures spelled out in the agreement 37
  38. 38. Thank you!Nicole Garton-Jones, B.A., LL.B/J.D., FMC Cert. CFM Heritage Law Tel: 778-786-0615 ext.111 Email: Website: 38