Monthly Archives: January 2014

Alternative Dispute Resolution Options

gleichgewichtMEDIATION: Parties mired in a dispute may voluntarily decide, or be court ordered, to seek a settlement at mediation. In either situation, the parties select a neutral and impartial mediator who will schedule a conference to take place at a mutually convenient time and location. The parties have the right to be accompanied by legal counsel. After appearance at the mediation conference, a party is free to withdraw from this voluntary process at any time for any reason.

The role of the mediator is to facilitate discussion, help clarify issues, encourage listening, seek to reduce roadblocks, and assist in exploring possible solutions. Mediation communications are privileged and confidential as provided by law.

It is the parties alone who determine the outcome of mediation, its essence being self-determination. The mediator cannot act as a judge, provide legal advice or make or compel any decision for the parties. Should the parties voluntarily reach an agreement, they craft its terms. Once an agreement is reduced to writing, it  is  not confidential, and it is enforceable as a contract.

ARBITRATION:  This process takes place when the parties have agreed to submit their dispute to a neutral for a decision (the neutral being an Arbitrator or panel of Arbitrators). It is a simplified version of a trial with limited rights of discovery and less formal rules of evidence. It is a private proceeding without any judicial intervention, and the parties can be represented by legal counsel.

The Arbitrator conducts a hearing; listens to testimony and cross examination of parties and witnesses; considers the evidence submitted; deliberates; and renders a written decision. That written decision, which can consist of anything from a one-sentence statement to a lengthy opinion, is not a matter of public record. By prior agreement , an arbitrated decision may be legally binding, not legally binding, and/or the amount of an award may be limited.

CONSULTING: A consultant may be engaged by a party as an independent contractor to perform a specific task for a limited period of time for a stated compensation. The specified task may be to implement any kind of objective. It may be development of a bargaining strategy to avoid litigation.

Normally, the consultant does not guarantee a positive outcome. The consulting agreement may be cancelled by either party upon timely notice. The party engaging the consultant has the right to be represented by legal counsel

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family consensus building approach

BConsensus building is an appropriate collaborative form of elder care mediation when chosen by the family on a voluntary basis and motivated by a desire to maintain or restore family relationships. It may be undertaken, to the extent possible, to arrive at an informed agreement which every family member, or almost every member, can live with based on shared values. The family controls the process.

The family may request each participant, among other provisions, to voluntarily consent to:

  • seek a mediated agreement based upon beliefs held in common
  • persevere, as long as possible, to find an alternative that does not compromise a basic value of another family member (avoiding decision making by vote)
  • abide by established ground rules and time constraints
  • respect the perspective of every family member (everyone being heard and no one dominating)

The role of the mediator in this confidential process remains unchanged. He/she is impartial and shall not enforce or adjudicate any matter.

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Why a family may choose Elder Care Mediation

japanese zen garden Family life inevitably changes. Transitions take place. Important issues arise relating to the health, medical care, and independence of an elder. Other financial, estate, and legal matters may demand attention. Family dynamics, evolving over the years, often are complicated. Relationships can be strained due to differences of opinion, individual perceptions of fairness, and caregiver burnout. The elder and/or loved ones may be experiencing significant stress.  There is a need to re-connect family ties, share responsibility, and make well informed decisions. In this scenario, mediation offers an opportunity.

Mediation is a private process based on self-determination – consent of the participants. Mediated decisions are made only by the family. Participation is voluntary, family members may opt in or opt out at any time for any reason or no reason.  Mediation communications are confidential as provided by law. The mediator, selected by the family, is neutral and impartial, he/she cannot take sides, provide legal advice or make decisions.

Topics for discussion at mediation are selected by the family. No topic is considered too complex for discussion.  Each family member is provided the opportunity to fully express his/her views without interruption and to make recommendations.

An elder may participate with dignity and autonomy to the extent possible. The mediator has a responsibility to make sure the elder’s interests are articulated, either directly or by an appropriate advocate. If desired by the family, professionals such as geriatric care managers, clergy, financial planners, support persons, caregivers, pets, etc. may participate. Each family member has a right to legal counsel.

Mediation conferences take place at convenient locations suitable to the needs and circumstances of the family. The conferences are conducted informally and privately, at group or individual meetings, in person and/or by electronic means.

The mediator’s role is to encourage family communication, mutual listening, to reduce obstacles, to clarify issues, and promote consideration of all possible remedies. The mediator is trained to de-escalate tension arising from family experiences, differences in philosophy, life circumstances, availability, and financial resources.

When motivated by a desire to preserve harmony, a family may prefer to first try a collaborative or consensus building approach to mediation whereby a solution is sought based on beliefs held in common. Voluntary ground rules may be established by the family, insofar as it is possible, to avoid decision making by a vote. Ideally, the participants will persevere in seeking an informed agreement, a shared solution, which every family member, or almost every member, can live with.

In both emotional and monetary terms, a mediated agreement made outside the courtroom, is less draining, and significantly less costly than litigation. When unresolved issues are litigated, no one can guarantee the outcome. Judges and juries make decisions based on their interpretation of the law.

A mediated agreement, crafted by the family, tailored to meet special circumstances, offers a greater degree of certainty, and more timely decisions. It is more likely to be durable and may well avoid family rifts that otherwise would never be repaired.

Initial consultations with family are free.  CONTACT PAT