Q&A

• Partial settlement of outstanding issues
• Trial decisions  
• Agreement to separate spheres of influence
• Agreement to compensate for lost values  
• Procedural solutions to substantive problems               
• Agreement to provide alternate satisfaction
• Improved understanding and relationship between the parties

• A party is unwilling to fully engage with the mediation process, but rather seems to want to go through the motion for some purely tactical advantage;
• There is a diagnosis of serious mental illness, which inhibits the ability to have a  "learning conversation" during mediation;
• There is a severe power imbalance that cannot be sufficiently countered during mediation; 
• An elder lacks capacity to understand and affect what's going on in mediation, without means to increase capacity 
• Conflicts involving deeply held beliefs and values (usually). Distinguish from disputes over property, power, and position, which can be negotiated

If you want to mediate but another family member is reluctant, explore the reasons for resistance and possible responses.  

Common objections to mediation:

• "We've already tried to resolve this ourselves . . . mediation will waste our time."

A mediator can help "reframe" interests and position, which frequently leads to shifts in negotiation strategy that can result in settlement. 

• "Why should I mediate? I've got Power of Attorney and all the control." 

Perhaps there is something less obvious to gain in mediation. If you care about your personal relationships (maybe not so much with your adult siblings, but you do want your children to have a positive relationship with their cousins), mediation can help resolve issues in a way that preserves relationships.  

• "We have a secret that we don't want the other side or anyone else to know."

The process is voluntary , so no one can make you tell your secret. It is also confidential, so your secret is safe. But remember, sometimes a judiciously timed disclosure of a "secret" is the impetus for a proposal with terms that may surprise you. 

• "Mediation doesn't work in a zero sum game."

Not usually. There is almost always an element of potential win-win. 

• "I can't afford mediation."

Sometimes, money is a stated reason, but it is really something else. It might be fear of an unknown process, which can be overcome. 

If the time is not right for mediation between all the necessary parties, do not despair. Sometimes, people change their mind over time, as they come to understand more about mediation and gain initial trust about the process and the mediator. In the meantime, while mediation is not possible, 1:1 conflict coaching may be beneficial.

In Comparison to a Geriatric Care Manager, a Therapist, or Lawyer

• A therapist provides psychotherapy, spending considerable time dwelling on the past, treating mental disorders and discussing feelings. In contrast, a mediator focuses more on problem-solving, facilitating conversation and negotiation between multiple parties. Also, a family therapist tends to meet weekly for one hour over a long period of time, while mediation takes place over a shorter but more concentrated period of time.

• A geriatric care manager's job is usually to create and execute a care plan. Sometimes, that means facilitating a conversation and negotiation between family members, but when that gets too difficult or the issues are outside a GCM's area of expertise, a mediator can step in and perform that function.  

• A lawyer’s job is to represent the client, which is typically not the entire family. Also, a lawyer deals with legal issues while mediation also involves non-legal affairs.

Comparison of Skill Set Between Mediators and Other Professionals 

• Mediators' primary task is to facilitate conversation and negotiation between the parties.

• Other professionals give actual advice and treat family members. Mediators do NOT give advice families about their specific situation.

• Other professionals represent just one person in the family; a mediator represents everyone equally.

Everyone is encouraged throughout the process to run anything discussed in mediation by their attorney in order to address legal considerations. This includes but is not limited to any written agreement negotiated by the parties during mediation.

Attorneys may also participate in mediation so long as other parties to mediation are comfortable with that arrangement. If valuation or other financial issues are at stake, professionals with financial expertise may also play a role, as can "financial neutrals." 

Beyond professional representation, a party may want to include another person in mediation as support, to feel more equipped to succeed during mediation.

As a general rule if at all possible, an Elder should participate in family mediation.

Sometimes, an Elder who wants to participate can do so with little or no assistance. Sometimes, they need a lot of assistance that an advocate or surrogate can provide. If no advocate or surrogate is available, there are other ways to include an Elder's voice.

Sometimes, an Elder may not want to participate or the adult children prefer to have at least an initial conversation amongst themselves in order to address their issues before involving a parent in further discussion. This may be o.k. depending upon the situation.

For mediation to be successful, all parties need to work together, for their own sake.  These guidelines help ensure success.

Come prepared to mediation. Give thought beyond just your arguments and positions, to identifying what your underlying interests and concerns are; where might they overlap with your siblings or parent? 

Commit to listen deeply to other people during mediation even if that's not what you think you want to do. If you are too angry or upset to do that for another person's sake, do it for yourself, out of your own self interest. It is proven that when you show another person that you are actually listening in order to understand them, they will open themselves up to you more readily, and that can lead to you getting more of what you want.

Mediation is your gift! Take advantage of the opportunity you've been given to ask the questions and make statements that perhaps you weren't comfortable doing beforehand. Your mediator is there to coach you, to help you find and express your voice and to help all the parties find "win win" solutions.