Alternative Dispute Resolution Options

gleichgewichtMEDIATION: Parties mired in a dispute may voluntarily or be court ordered to seek a settlement at a mediation conference. In either event, 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 always have the right to be accompanied by legal counsel. Once a party appears at a mediation conference, he/she is free to withdraw at any time for any reason.

The role of the mediator is to encourage discussion, help clarify issues, listen attentively, seek to reduce roadblocks, and to explore possible solutions. Mediation communications are privileged and confidential as provided by law.

The parties alone determine the outcome, the essence of mediation is based on self-determination. The mediator cannot act as a judge, provide legal advice or impose a  decision upon the parties. Should the parties voluntarily reach an agreement, the parties craft its terms, the agreement is reduced to writing,  and it is enforceable as a contract.

ARBITRATION:  This process takes place when the parties agreed to submit their dispute to a neutral for a decision, i. e.,, an Arbitrator or panel of Arbitrators. Arbitration is a simplified version of a trial with limited rights of discovery, less formal rules of evidence, no judicial intervention, and, of course, the parties may 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 and it 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 including the development of a  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 is undertaken 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 decide to request each participant to voluntarily consent to:

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

The role of the mediator in this confidential process is to be neutral and impartial, not to act as a judge to compel or adjudicate the outcome of 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.

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Impact of Bankruptcy Court Mediation in Good Faith

The following article was printed in the Orange County Bar Association February 2013 issue of The Briefs, and, with permission, reprinted in the Dade County Bar Association April 2013 issue of Bulletin, and in the Hillsborough County Bar Association March-April 2013 issue of Lawyer (latter in edited form). download the PDF version

In Florida, once upon a time, Supreme Court certified mediators knew of no statutes, rules, or common law governing court ordered mediation in good faith; mediation communications were confidential except as provided by Florida law; mediators were required to report the absence of an agreement without comment, and mediators were not permitted to report failure of parties to mediate in good faith.

In advisory opinion 2012-005, Florida Supreme Court’s Mediator Ethics Advisory Committee (MEAC) stated a certified mediator may disclose a party failed to negotiate in good faith or willfully failed to appear at a court ordered mediation as required by the local rules of the U. S. Bankruptcy Court for the Middle District of Florida. The MEAC opinion relied on the Florida Rules which state “a mediator shall comply with all statutes, court rules, local court rules, and administrative orders relevant to the practice of mediation” [Rule 10.520]. Mediators were advised to highlight in their opening statement that the federal bankruptcy court’s requirement of good faith is an exception to the parameters of mediation confidentiality found in Florida court rules.

For more than a decade, nationwide, legislatures and the judiciary have mandated good faith mediation in the belief the threat of sanctions promotes more productive participation and reduces the backlog of cases. Legislative and judicial authority to mandate mediation and to impose sanctions has not been in dispute. Nor is there any dispute about the separation of judicial and legislative authority which provides the U. S. Bankruptcy Court the inherent power to override Florida’s Mediation and Confidentiality Act. Like it or not, it appears mandated good faith mediation is here to stay.

The U. S. Bankruptcy Court for the Middle District of Florida is silent as to whether a certified mediator has an affirmative duty to probe into the good faith conduct of the parties. The mediator has not been instructed to evaluate in depth a party’s level of participation, willingness to make a reasonable offer, and substantive bargaining position. As a practical matter, the constraints of the mediation process, as we now know it, would tend to limit the ability of a mediator to make a proper evaluation, one that is more than a subjective opinion. In any event, a probe to ascertain good faith is not the Bankruptcy Court’s primary motivation for mandating mediation nor is it a typical function of the mediator. Until the Court provides definitive guidelines, the mediator must recognize good faith mediation as an ambiguous concept.

Thus, the Bankruptcy Court has imposed a novel responsibility upon the certified Florida mediator, adjudicative in nature, which, upon reflection, not only challenges the mediator’s ability to otherwise maintain confidentiality, but also to remain impartial, preserve self-determination, encourage open and effective communication, and foster continued trust in both the mediator and the process. All the while, the mediator must be mindful not to appear to exert a coercive influence upon the parties to settle. Good faith mediation still is a voluntary process and the parties have a constitutional right to a trial.

With respect to the Court’s order requiring the mediator report a party who “willfully” failed to appear (who perhaps the mediator never met), apparently the mediator may assume a reported failure to appear will be presumed by the Court to be willful. However, when all parties personally appear with full settlement authority following a satisfactory prior exchange of information, the Court has not stated this conduct conclusively constitutes good faith. Presumably, good faith needs to be independently verified. A particularly engaging ethical issue is the obligation of a certified mediator to ascertain the good faith of a party who appears without actual or purported full settlement authority. To certified Florida mediators, this circumstance has familiar ramifications; however, the Bankruptcy Court with paramount authority has not provided any direction.

To meet this unique challenge, a certified mediator must be circumspect. To cut to the chase, a mediator’s report to the Court of a party’s failure to negotiate in good faith ought to be based solely on objectively verifiable and convincing fact, uninfluenced by emotion, surmise, or personal bias. It goes without saying, should any dispute arise relating to the conduct of mediation in good faith, the mediator may be called upon to testify in a later proceeding.

There are many reasons to define and differentiate the principles of good faith mediation not the least of which is to preserve the public perception of the core values of traditional mediation as promulgated in Florida.

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