Many people with aging parents may be all too familiar with the following situation. A decline in the functional status of an elderly parent forces the need, sometimes suddenly and unexpectedly, for a family to have to make major complicated decisions about the parent’s well being. Forgetfulness and physical difficulties performing household activities such as cooking, cleaning and climbing stairs trigger the need to assess care giving and changes in living situations. Driving mishaps such as a fender bender or difficulty in reaching familiar destinations prompt consideration of whether it is time to “take the keys”.

DIFFICULT DECISIONS FOR FAMILIES

Although there has been a growing awareness among the adult children of potential problems, there may not yet have been any serious collective discussion or planning. The family members are geographically spread out and have different levels of involvement with their parents and knowledge about their healthcare and financial situation. The adult children have dissimilar financial and family circumstances that create diverse perspectives on care giving roles and financial management and asset distribution.

In view of the medical, legal, financial and emotional challenges of the aging transition decisions that have to be made, the potential for disagreement and conflict among the family is high. There is the inevitable tension between the parent’s desire for independence and their increasing need for support. Those who have been providing for most of the care needs may be resentful of those that have not and believe that they should receive “caregiver equity”. Old issues of sibling rivalry and parental favoritism can rise to the surface, making already difficult communications that much harder.

According to elder law attorney Martin Womer of Maine Center for Elder Law in Kennebunk, Maine, dysfunctional communications among family members is apt to occur “when it is about to become expensive” due to the need for change in the parents living situation, such as the provision of extensive care giving or moving to an assisted or full care living facility. As Womer explains, “What you often see is a sibling who has been uninvolved in what is happening, suddenly wants to be an equal participant or take control of the situation to protect his or her inheritance. If the communications about the decisions that need to be made then become confrontational or are avoided because of the tension, there can be serious adverse consequences, including litigation which destroys family relationships.”

USING MEDIATION TO ADDRESS ELDER ISSUES

To deal with these difficult communications and decisions, families are increasingly turning to Elder Mediation as a process to help avoid and resolve disagreement. The growing national trend is not surprising when considering that the 85 and over age group is the largest growing demographic in the United States and there are over 20 million adult children acting as caregivers, 60% of whom are still working.

Elder Mediation provides a forum for the family members to be heard, learn what is important to each participant, face disagreement, find common ground and develop creative solutions. The process is nonbinding and confidential, participation is voluntary and decisions are made by consensus, not by the mediator. The mediator is a neutral party skilled in listening, diffusing tensions and identifying the interests of the participants. When there is no professional neutral present to help guide the family members towards finding common ground, family meetings can expose more pain than resolve problems.

Mediation can be particularly helpful to elder law attorneys faced with the potential conflict of representing the senior, but necessarily having to deal with family members whose positions conflict with that of their client. On behalf of the senior, the attorney often works closely with one of the adult children who has been most involved with their parents’ situation. When communications occur between the attorney and other siblings with differing views on decisions that need to be made, the issue of “who is the client?” is raised for the attorney. According to Womer, “While the attorney can explain the options and legal ramifications to siblings not allied with their parents, they cannot advocate their positions, even if they have merit, without risking a perceived or actual conflict, and their ability to advocate for their client can be compromised by their effort to achieve consensus,”

HOW ELDER MEDIATION WORKS

Because it typically occurs when there is disagreement over aging parent decisions that have not yet risen to the level of dispute were attorneys have been hired or litigation started, the mediation process is different from that which is commonly experienced in pending probate or other types of litigation. Mediation in those settings typically starts with the submission of position papers with detailed factual and legal analysis by the opposing attorneys. At the mediation session opening presentations are made with all the parties together followed by back and forth negotiations conducted by the mediator meeting with the parties separately.

The elder mediation process begins with an intake session between the mediator and family member, trusted advisor or referring professional who has initiated contact. Preliminary background information is obtained and there is a discussion of who should participate and how payment will be handled. The decision to move forward with the process and the details are set forth in a participation agreement signed by everyone.

Once the agreement is in place, the mediator conducts private sessions with all of the parties, usually by telephone. The sessions provide an opportunity for a confidential exploration of each party’s interests and their view of their parent’s needs and the position of others. Womer says “that it is this type of communication, which can be critical to finding out important family dynamics, that an elder law attorney cannot have with family members not allied with their client”. Information is obtained to identify any behavioral or relationship issues that need managing at the group session and any potential neglect or abuse.

Based upon the information developed from the private sessions, the mediator prepares an agenda and suggested topics list for the mediation session. Although the session is run as a group session, the location will have extra rooms for the parties to meet privately with each other or with the mediator to help deal with confrontational or emotionally charged communications and to conduct separate negotiations if necessary. Depending upon their physical and mental health, the participation of the parents can range from not at all to being present for the entire meeting.

The meeting proceeds with a focus on identifying interests and facilitating understanding between the participants. It typically lasts a half day, but can be shorter or longer or continued to another session as may be agreed. To the extent that understandings and agreements are reached, the mediator will work with the participants to draft language for memorandums of understanding and agreements which are helpful to solidify decisions and provide guidance for communications on future issues. Attorneys participating for some or all of the parties at the session or available as a resource can enhance the progress towards settlement by explaining legal issues and reviewing and drafting agreements.

Although some may be skeptical and resistant to the idea of paying “an outsider to tell them how to run family business”, Elder Mediation can save families from the potentially devastating financial and emotional costs of waiting too long and then having to make decisions in “crisis mode”. Attorney Womer believes “that it is an underutilized opportunity to resolve issues and overcome communication problems that can create ticking time bombs”. The process allows everyone to be heard and express what they want to happen in a safe environment. It helps the parties to be open-minded, respect each other’s viewpoints and develop a sense of optimism that the group can come up with good solutions, all of which are important to making the best decision for the parent’s well-being while preserving family relationships. Because the relationships involved and the decisions that need to be made are continuing, the value of Elder Mediation goes beyond the resolution of pending issues by creating a blueprint for future decision-making.

About the blogger:

Peter Schroeter is an attorney with Shaheen & Gordon, PA., where his practice focuses on Mediation and Dispute Resolution Services. He is a member of the National Academy of Distinguished Neutrals, rated AV by Martindale-Hubbell and recognized by Best Lawyers in America in Mediation

Not long ago, alternative dispute resolution was one of the many stopping points on the path to trial. ADR was something you checked off the list as you prepared a case for a presentation in a courtroom. Increasingly, though, ADR has become the last step in the life of a lawsuit – the ending place where litigation is concluded.

The emergence of ADR, and specifically mediation, as the process by which most cases will end, requires fresh thinking about the client’s role in a mediation and how counsel will approach this process.

With few clients ever seeing the inside of a courtroom, let alone getting to tell their story to a judge or jury, there is a corresponding need for clients to have a speaking role within the mediation process. In reaching a resolution, each client wants to feel that his or her story has been told, listened to and counted.

It is easy to forget that a client’s perception of fairness and sense that mediation has produced a just outcome often is not tied to a dollar amount – the value system that the judicial system superimposes on the nuanced personal problems that find their way into suit. The perception of fairness draws as much from the process as from the ultimate result: clients’ beliefs that mediation allowed their voice to be heard and their sense that their position was effectively advocated.

I sometimes run into counsel who are reluctant to allow their clients to talk in a joint session and then immediately try to interpose themselves as a protective buffer between mediator and clients in private caucuses. The attorney becomes the filter for any communication with the mediator, boxing the client out of any meaningful role in the process, let alone a chance to talk about what is personally important. A skillful mediator will work around the filter and find ways to start a dialogue directly with the client. Skillful counsel will invite a direct conversation between the mediator and the client in private session and may even encourage the client to have a speaking role as part of the joint session.

Open conversations between mediator and client have value on a number of levels. They allow a relationship of trust to develop that may be critical to resolving a case when negotiations get difficult. These conversations are also informational and may provide the basis for creative approaches to resolution that are not immediately apparent from the claims in the lawsuit. They also sometimes will result in new information that can be significant in working toward resolution. If counsel insist on talking for their clients, these conversations cannot take place.

Although there is a risk if counsel talk too much when they should sit back, there is also a risk when counsel do too little and fail to advocate for their client in the joint session. How often do we hear this statement: “We have set out our position thoroughly in our mediation summary, and I don’t have anything else to add.”

From the perspective of a client looking to counsel to advocate his or her case, this is akin to an attorney waiving opening statement at trial and not calling any witnesses. While I am not a fan of exhaustive presentations by counsel in joint sessions, I do think that clients want to know that someone was advocating their position and making sure that they were heard.

There are limited cases where counsel will jointly agree not to make opening presentations to avoid further upsetting parties who cannot be together and starting the mediation off in a direction away from settlement. Those situations should be the exception.

Another problem that occurs infrequently in northern New England, but can have a profoundly negative impact on the mediation process, is counsel who decide that the mediation process is the opportunity to prove his or her worth by demeaning and insulting the opponent and the opponent’s attorney. The level of professionalism expected in a courtroom should be counsel’s baseline at mediation. Experienced counsel know how to make effective points while maintaining an atmosphere of respect. Successful mediation is ultimately a facilitated negotiation process, and offensive behavior is an odd strategy to promote settlement.

If mediation is the new paradigm for case resolution, the level of preparation prior to mediation has to increase. It does not help to go into mediation having never discussed settlement ranges with one’s client. It does not help in a multi-defendant case if the defendants have not even discussed allocation or levels of participation. It does not help if lien amounts are unknown, lienholders have never been contacted and there is no way to reach them at the mediation. It also does not help if significant new medical bills or other new evidence of damages are handed to the other side for the first time at mediation session.

A recurring problem in personal injury mediations is insurance carrier participation. Although the logistics of having an out-of-state claim representative appear in person are sometimes daunting, it often sends the wrong message if the plaintiff shows up in person only to find the other side is “available by phone.” If a claims person is not going to attend in person, make sure this is known and agreed to by opposing counsel. Consider arrangements to join that representative in the joint session by Skype, WebEx or phone. On the defense side, an insurance representative would be less than happy to show up in person to a mediation only to find that the plaintiff is not attending but will be available by phone “as needed.” Personal attendance by decision makers on both sides communicates respect and commitment to the mediation process. It improves prospects for a successful resolution.

Negotiation strategies in the course of a mediation are different from attorney to attorney and from case to case. One strategy that accomplishes little – except immediately starting the mediation off on the wrong foot – is moving backwards from a pre-mediation settlement position by taking an offer off the table or starting out with a higher demand than was in play pre-mediation. Although inexperienced counsel may think that this type of negotiating shows “toughness” to a client, it can create very unrealistic client expectations and usually backfires. This type of gamesmanship can quickly make the dispute personal and distract attention from the more meaningful issues of case valuation and risk.

With mediation displacing trial as the forum in which we resolve most disputes, we need to rethink what this means for clients and their role in the litigation process. As counsel, we also need to rethink what we are trying to accomplish and how we can be most effective if mediation is the practical ending point for most cases. This transition is happening. The most effective mediation counsel, like the most effective trial counsel in years past, will be fully prepared for these unique challenges and opportunities.

This article first appeared in the New Hampshire Bar News – October 19, 2016

About the Blogger:

A shareholder at the Primmer Law Firm and an adjunct professor of negotiation at Vermont Law School, Gregory S. Clayton mediates cases throughout New Hampshire, Vermont and Maine.

He may be contacted by email or at (207) 618-6070 or (603) 444-4008.

Mediation has become a critical component of dispute resolution in three administrative settings in Maine state government, suggesting that other agencies should explore the possibility of instituting mediation as part of their adjudicatory or dispute resolution processes.  The Maine Department of Education and the Maine Human Rights Commission have had great success instituting high-quality, low-cost mediation programs that reduce the number of cases that require further adjudicatory processing.  In addition, the Office of the Attorney General has a long-standing phone conciliation program that reduces the number of consumer complaints that require agency resources.

The Maine Department of Education was a leader among states in offering mediation, which it began to do in the late 1980s.  When special education services are at issue, a parent or a school district may file a request for either a complaint investigation, conducted by a Department of Education employee on behalf of the Commissioner, or a hearing, conducted by an independent hearing officer contracted by the Department.  A request for either process provides the opportunity for the parties to take part in mediation paid for by the Department.  A stand-alone mediation may also be requested, even without the filing of a complaint investigation or hearing request.  The Department’s roster of experienced mediators, who contract with the Department, are assigned to cases on a rotating basis.

The focus of these mediations is most frequently the eligibility of a student for special education services, or the configuration of services or placement of a student who has already been deemed eligible.  Although school districts nearly always consult with a lawyer, the school district may only bring a lawyer to the mediation if the parents also are represented by a lawyer or non-attorney  advocate.  To the maximum extent possible, agreements are finalized in writing at the conclusion of the mediation and routinely include the withdrawal of the hearing or complaint investigation request by the complaining party.  There is no cost to parties to participate in this mediation program nor does it result in any delay in the adjudicatory process.  The Department has found that having a mediation program in place greatly reduces the number of due process proceedings that are held, at significant cost savings to the Department  and the parties in the long run.  In the past three fiscal years, 84 cases have been resolved through mediation, with nearly half that number of hearing or complaint investigation requests also being withdrawn, often a result of resolution following the formal mediation.  Mediation in this context is also particularly useful to parties, who are often in an ongoing relationship around the education of the student, a relationship that may continue for many years to come.  Resolving a dispute through a collaborative process such as mediation greatly increases the quality of the parties’ relationship going forward, ultimately serving the best interests of the student.  As one mediation participant responded as to why she chose mediation, “[m]y preference [was] for mediation in order to end the long drawn out process of a hearing.  Mediation would appear to assist with emotions and trust remains between family and school.”

The Maine Human Rights Commission has more recently created a mediation program and has seen a significant increase in interest in participation from parties in recent months.  With grant funding secured through the Skadden Foundation in 2011, I helped the Commission conduct a review of mediation programs at other Human Rights Commissions in New England.   Following that review, in 2012, the Commission instituted its own mediation program by rule, also using a small roster of experienced, contracted mediators.
Mediations cover the gamut of issues that may be raised before the Commission alleging unlawful discrimination.   The Commission has a standardized set of agreements that the parties may use to memorialize an agreement and modify as they wish, although the Commission must also sign any agreement reached by the parties.  Further, even if the parties reach a private settlement and opt to dismiss their complaint with the Commission, before it will dismiss the complaint, the Commission requires the parties to disclose the terms of the agreement, which it utilizes in the aggregate for data collection purposes.   The majority of mediated cases allege employment discrimination; remedies can include reinstatement, reasonable accommodations, letters of reference, modified policies, compensatory or punitive damages, and attorney’s fees, among others.  In public accommodation claims, remedies might include the respondent ceasing and desisting from an unlawful practice, instituting new policies, participating in training, or paying damages or attorney’s fees.   Although the mediation program is utilized less frequently in the context of alleged housing discrimination, common remedies include reasonable accommodations, participation in training by the respondent, development or modification of policies, and actual or civil penal damages.

The Commission is not able to offer mediation to all cases, but instead selects cases based on Commission staff’s assessment of the possibility of resolution and the interest of the parties in participation.  Parties are offered access to the mediation program after the Commission has received the respondent’s answer to the complaint and response to the request for information and documents and after the complainant has filed a reply supporting his or her complaint.  Once a referral to mediation is made, further investigation of the case can remain on hold pending the conclusion of the mediation.

Tight budgets at the Commission have resulted in a shift of the cost of the mediation to the parties, although participation remains a bargain.  Since the implementation of a new rule in September 2014, each party to the dispute is required to pay a fee of $200 to participate in mediation.  The Commission has created a scholarship program to allow parties who are not able to pay the mediation fee the opportunity to participate.   The Commission has found that the mediation program is highly successful in resolving cases, thereby removing the need for full Commission investigation of those cases.  In the first nine months of the program, the parties successfully reached agreement in 17 out of 23 cases.   Feedback about the mediators on the roster is also very positive — as one attorney representing a complainant indicated:  “Awesome mediator. Great communication, empathy, patience, professionalism.  We achieved rough justice, always the goal. Thank you for offering this program.”

Both the Department of Education and the Commission have statutes or rules to supplement the applicable Maine Rules of Evidence regarding confidentiality of the mediation process as well as conflict of interest requirements.

Both the long standing mediation program of the Department of Education and the newly revived program at the Maine Human Rights Commission show the benefits of a mediation program both in terms of saving government funds and also in terms of shortened length of time to resolution for parties.  Although full-blown mediation programs staffed by experienced mediators are the ideal, other agencies have enacted modified mediation programs to help resolve cases and conserve resources.  The Attorney General’s office started a volunteer mediation program in the 1980s that provides phone mediations in consumer complaints.  Once the Attorney General’s office receives a complaint, it forwards the complaint to the business along with the relevant chapter from the Attorney General’s Maine Consumer Law Guide.  A cover letter urges the parties to come to an agreement, which results in the resolution of about 20% of filings.  If there is no resolution with the initial letter, a volunteer mediator has telephone communication with each party in an effort to find a resolution.  About 50% of all filings are resolved through the volunteer mediation program, often resulting in funds being returned to the consumer.  In other states, including Georgia, Florida, and Ohio, mediation programs have been instituted to resolve citizen complaints of denial of access to public documents.

With a little creativity and thoughtful implementation, it is likely that mediation programs could be instituted in many other areas of Maine state government to aid the voluntary resolution of disputes and save limited state resources.

This article originally appeared in the June 2015 Special ADR issue of the Maine Lawyers Review.

About the Blogger:

 Since 2005, Rebekah Smith has maintained a neutral legal practice, specializing in mediation, arbitration, administrative law judging, and independent outside investigation.  As a mediator, Ms. Smith has mediated many hundred cases on a wide range of topics, from real estate to human rights.  She thoroughly explores all avenues to settlement and enjoys bringing parties together to resolve their situation creatively.  In addition to providing mediation and independent investigator services for private parties, she serves as a mediator or arbitrator for the Maine Department of Education, the Maine Labor Relations Board of Arbitration and Conciliation, the Maine Human Rights Commission, and the Maine Court system (Foreclosure Diversion Program, Small Claims Court, Landlord-Tenant matters, and Superior Court roster). As an administrative hearing officer, Ms. Smith presides over hearings for the Maine Department of Professional and Financial Regulation (and several licensing boards affiliated with DPFR), the Maine Public Employees Retirement System, the Maine Board of Emergency Medical Services, and the Maine Department of Public Safety. She is a Policy Fellow at the Margaret Chase Smith Policy Center and she has also served as an Adjunct Legal Studies Professor at the University of Maine at Augusta. Ms. Smith is also a member of the Board of Directors of the Maine Association of  Mediators and the Board of Directors of Children’s House Montessori School.

It goes without saying that good case preparation is critical to a successful mediation. Good client preparation is equally important. All too often counsel will ask for use of a conference room half an hour before mediation to meet with a client and it becomes quickly apparent as the mediation progresses that it was the only attorney-client meeting to prepare for the mediation. Caught by surprise by what opposing counsel does in the opening, by what the mediator says about the process and their case and the rigors of extensive back and forth negotiations, clients can become anxious, defensive, and angry. Those types of emotional reactions interfere with the good listening and objective thinking that is essential for effective and realistic negotiations and good outcomes.

A client should not be brought to mediation without at least one extensive preparation meeting within a week or so of the mediation. Considerable time should be spent making sure the client understands the procedure and its nuances. The client should be prepared for the possibility that opposing counsel may direct their comments to them in the opening session and that they may have to listen to things that are difficult for them to hear. At the same time they should be reassured that they will not be subject to examination or even have to speak while the parties are together. Counsel and their clients should discuss and decide together whether there is anything the client can say in the opening that would be helpful to their position without posing a risk that it would do more harm than good.

The client should be fully educated on what counsel will say and what documents will be used, and why, in the opening. They should understand that it is a highlight summary presentation and not all the evidence, including things that they think are important, will be discussed, but that there will be opportunity for them to “tell their story” in the individual sessions with the mediator and include those items in the negotiations. They should be as fully prepared as possible for what opposing counsel will say and how. Making sure that clients have the opposition’s mediation submission will be helpful in setting realistic expectations.

Similarly, clients should know what to expect to hear in the mediator’s opening remarks, including the confidentiality aspects of the process, its nonbinding nature and the need to listen carefully and understand the risks and uncertainties of proceeding to trial. They should be made aware that the mediator is likely to be discussing the risks and potential problems with the client’s case more than its strengths. They should understand that this does not mean the mediator is “against them” and that the mediator will be taking a similar approach with the other side. Clients should be told in advance that the mediator can be asked to leave the room for private conferences between client and their attorney, that private communications with the mediator can be kept confidential from the other party and that they are likely to experience long, drawn out back-and-forth negotiations, sometimes based upon “positional bargaining”, unlike others that have experienced in their lives when purchasing cars or houses.

While the increased use of mediation has made it a familiar and regular activity for trial lawyers, they should remember as they prepare their clients that, for them, it is a new experience and very important day and should be treated as such.

About the Blogger: 

Peter W. Schroeter  began practicing law in 1980 as a trial attorney. Over his career he developed considerable experience in a wide variety of civil litigation matters, including business, construction, employment, insurance, personal injury, probate and real estate. Based upon that experience, including numerous jury and nonjury trials in state and federal courts and hundreds of successful settlements representing both individuals and businesses, Peter began serving as a mediator in the late 1990s. Because of his reputation for fairness and impartiality, his ability to be a good listener and his willingness to work hard and be persistent to achieve settlements, his mediation practice grew rapidly and he soon became one of the most well respected mediators in Maine. Peter’s practice is now concentrated on Mediation and other types of alternative dispute resolution work, such as Arbitration and serving as a court-appointed Referee and is a Past President of the Maine Association of Mediators.

Amid this particularly adversarial election season, it occurs to me that fighting, though great for TV ratings, rarely accomplishes anything. I’m thinking about the presidential debates, where the more the candidates assert their positions, the more defensive and polarized they become. Fighting to outdo your opponent makes sense in debate because the idea is to prove the validity of one viewpoint over another. But when you bring that kind of aggressive, self-serving stance to personal human disagreements, you usually lose.

The secret to winning in the arena of human conflict is to appreciate that the best fixes come from synthesizing rather than isolating different perspectives.  Obama, speaking of politics, is known for solving complex problems by gathering several experts – scientist, economist, historian, etc. – around a table, hearing their varying ideas, and channeling the best of what they offer into a well-rounded solution more potent than what any one of those experts could have created on their own. When you get beyond a “my way or the highway” mentality to embrace rather than reject other opinions, you release yourself from limitation and enter into an enormous playground of possibility.

This process of synthesizing differing approaches into a more powerful outlook is the heart of mediation. Instead of wasting time and money by bickering endlessly from their own hard-lined mindsets, opponents strive with the mediator toward an agreement that is greater than the sum of its parts. At best the opponents come up with creative solutions they never thought possible; at the very least they each end   up with solutions they both – not just one of them – can live with.

It’s not exactly easy to put ego aside and consider the perspective of someone you may be angry with or feel betrayed by. The process is less challenging, though, when you throw out questions that work well for debating but get in the way of resolution, such as:

♦ How can I beat my opponent?

♦ How can I prove that I’m right?

♦ How can I show everyone that I am smarter/more deserving/morally superior?

♦ How can I make this go my way?

Even if you regard your opponent as a complete idiot with whom you have nothing in common, you can reach a mutually palatable settlement by unlocking yourself from a single-minded position. These questions will help you to move beyond guardedness and into the sort of productive, flexible discourse that attracts enlightened answers:

♦What solution is truly best for our kids/organization/community?

♦ How do I want to feel at the end of mediation?  (Victorious, unencumbered, confident?) Other than getting my own way today, how can I get to those feelings?

♦ How would I want to describe my behavior during this mediation to my children/my boss/my students/my favorite mentor?

♦ How do I want to remember this process five years from now?

♦ How can I behave today to help this process go as smoothly as possible?

♦ What might happen today if I let empathy for my opponent, rather than a desire to win/get revenge, guide my actions?

♦ How might letting go of the outcome make this process easier/more productive?

The beauty of expansive inquiries like these is that they open up potential for equally expansive solutions. And if you’re not quite convinced that letting your guard down is better than digging your heels in, I ask that you entertain one final question:

What remedies might arise were Hillary and Donald to take their gloves off, highlight the strengths they both bring to the ring, and integrate – rather than argue – their brightest ideas into bettering our country?

About the Blogger:

Psychologist Amy Wood, Psy.D. helps adults to articulate and accomplish their own unique versions of success through psychotherapy, executive coaching, speaking, mediation, and collaborative law coaching. A pragmatic optimist, she is known for her capacity to simplify complexity and see manageable solutions amid the overwhelm of modern life and work. Dr. Wood is the author of the award-winning book Life Your Way: Refresh Your Approach to Success and Breathe Easier in a Fast-paced World, a founding member of the Maine Collaborative Law Alliance, and a member of the Maine Association of Mediators. She earned her doctorate from the Adler School of Professional Psychology, graduated from the College of Executive Coaching, and is a certified mediator.

Visit her website at amywoodpsyd.com.

Whether through private mediation or the court mediation service [1],  a matter involving the other parent and you is scheduled for mediation – and the issue has to do with your child or children [2].  How can you prepare to make this mediation successful?

What is a successful mediation? Almost all mediators define a successful mediation as one in which the parents have reached a workable resolution of the issue or issues, making court proceedings unnecessary. A couple of important points:

♦  It is not about winning or losing. Many people enter mediation thinking of the car-buying model of negotiation: one side asks for everything and the other side offers nothing and hopefully they will meet somewhere in the middle . . . or the parties walk away and look for another buyer and another seller.

But situations involving children are not like that – these types of cases have a different model: the parties xxxxshare a common interest or problem (the child’s welfare or behavior or whatever the issue might be) and they have to find a solution that works for xxxxeveryone: both the parents and the child.

♦  The resolution may not be perfect, but it is workable; that is, everyone can live with it. There is an old saying that a good outcome to a negotiation is when both sides are equally unhappy. It is sort of the same thing with a successful mediation. Rarely (if ever) does one side get everything he or she wanted. But if each side is willing to be a little flexible, each side can likely get much of what she or he hoped for [3].

♦  Mediation, because it is always voluntary [4], can only work if both sides allow for the possibility that the future can be different than the past. No one can forget how the other party acted in the past, and the future may be a repeat of the past, but people can learn and change. A parent who has not been involved may realize what s/he is missing in the life of their child, and want to become involved in a meaningful way in the child’s life.

The central issue is ALWAYS what is in the child’s best interest. If the parents cannot reach agreement on an issue involving their child, they almost always have the option of going to court. But if they do go to court, the judge or magistrate will be focused on the child’s best interest.

A party focused mainly on his or her legal rights (under the law, the prior judgment, or order of the court) will almost never do as well as the parent focused on the best interests of the child. In most cases, it is not in the child’s best interest to have no contact with the other parent. The question is how to provide meaningful contact in a way that benefits the child. Often it may involve a series of steps or stages before arriving at the desired resolution.

What all this means in practical terms is you need to come prepared to show how what you are asking is really in the child’s best interest. It means knowing what is going on with your child: what the teachers are seeing, what the opinion of the child’s doctor and therapist (if there is one) is, what is required to parent a child at your child’s developmental stage, with his or her special needs, interests, and/or abilities. The effort to gather this information in advance of the mediation shows your commitment to your child and is never wasted: this is the same information you will need if matters are not resolved in mediation and the issue must be decided by a judge or magistrate.

Along the same lines, thinking realistically about what outcome(s) you could live with – even if not perfect – is good preparation for mediation. Most of us do not like to have to make important decisions on the spot. Thinking about a range of possible outcomes ahead of time can be very helpful.

Think about what happens if the matter is not resolved in mediation. Often thinking about what will happen if no resolution is reached in mediation can motivate parties to bend a little more to avoid the alternative. Most often, the alternative is having a hearing in court. This is almost always expensive, always involves more time (both preparing and away from work), and takes a toll on both parties and the child. Sometimes it is helpful to think about how you want your child to look back on his or her childhood: parents fighting or parents with different ideas – both of whom love the child – figuring out how to co-parent in less than ideal circumstances.

When parents are able to reach an agreement rather than fight, it is a gift to their child – a gift that only the two of them can give. Many times mediation can help, especially if it is successful!

[1] The official name for the court mediation service is CADRES, which stands for Court Alternative Dispute Resolution Services.

[2] Whether there is only one child or more than one, the considerations are the same. For this blog post, we will refer to “child” but it includes “children” as well.

[3] It is never a “success” in mediation if one side just gives up and says “Whatever.” This tactic may end the mediation but rarely if ever leads to a long-term good outcome.

[4] You may be “forced” by the legal system to go to mediation, but you don’t have to agree to anything; you always have the right to have the issue decided by a judge or magistrate.

About the blogger:

Barry L. Kohler is a mediator who is an attorney, a Certified Financial Planner, and has served as the director      of a bank trust department. His current mediation practice is primarily related to family matters and matters involving families and money, but he selectively accepts other types of cases. He serves on the Maine Court Alternative Dispute Resolution Services (CADRES) roster, is a FINRA-qualified arbitrator, and has served on a Maine Medical Malpractice Screening Panel. Barry has a B.A. degree in Philosophy from University of Pennsylvania, and a law degree from Cornell Law School. He mediates regularly in Portland, Lewiston, Bath-Brunswick, and various York County towns.

Dispute is part of the human condition.  However, compromise and agreement is just as much a part of day to day living.  The difficulty is often determining how to move from dispute to agreement.  Mediation is an effective option.

You may wonder when it is appropriate to use mediation.  Here are some thoughts:

First, it is important to understand what mediation is and is not.  Mediation is defined as a negotiation to resolve differences conducted by an impartial party.  It is not one party imposing their will on another.  It is also not a judge imposing a final determination on parties.  It is an effort to use a trained facilitator to allow the parties to explore alternatives and come to their own compromise resolutions.

Now, here are some general benefits of mediation:

Control. Mediation gives parties control of the outcome.  A mediation allows for a structured process and the aid of an expert to reach a consensus parties feel comfortable living with in the future.

Time. Dispute resolution through the courts can take a huge amount of time.  This is not only frustrating because of the wait involved, but the delay may cost money and further erode relationships that need to be preserved in the future.

Money. Formal dispute resolution mechanisms such as trial or arbitration can be extremely expensive.  Mediation can be scheduled quickly, somewhat informally, and generally is much less expensive.

Flexibility.  Mediation can be used in almost any situation where a dispute exists.  It is really up to the parties to determine how formal or informal the process may be, procedures, and how to structure the negotiations.  Again, this is empowering and efficient.

Future relationships. In many instances, parties with conflicts can end up with results that adversely affect relationships that need to continue into the future.  By crafting an agreement through mediation, parties take the first positive step toward their future together.

Specific areas where mediation is used include:

Divorce/family law. Couples in conflict can use mediation to reach resolution and build appropriate agreements for future financial interactions and, quite often, situations with children.  Parties that want to avoid the contentious nature of a contested divorce in the courts can retain a mediator to help craft an uncontested divorce agreement.

Real estate. Home and land disputes can be highly contentious.  Issues over sales of existing homes, owner rights, and association disputes often are more emotional than financial, and mediation offers a cost effective method to explore realistic resolutions.  The Maine Association of Mediators offers a referral service for real estate disputes (insert link).

Business disputes. Business disputes are a perfect example of when mediation can effectively save time and money, and foster ongoing relationships.  Rather than invest massive time and money in formal court proceedings, business parties can create agreements that allow continuing business relationships.

The courts. Mediation is scattered throughout the court system.  In Maine, mediation is used for small claims.  Mediation is mandatory in family law cases where issues involve a minor child.  The Maine Superior Court also has mandatory mediation for parties after initial discovery but before trial.  The courts have learned through practical experience that mediation efforts are highly effective and eliminate the need for many trials.

Private disputes. The sky is the limit with mediation.  The reality is that any dispute can be negotiated with the aid of a mediator.  The key is to have an impartial individual who is trained and educated in the art of facilitating constructive communication.  A court filing is not the only option when a dispute arises, so consider mediation first.

About the blogger:

Nelson J. Larkins is a litigation attorney with an emphasis in the areas of workers’ compensation, the Federal Longshore and Harbor Workers’ Act, employment and labor law, insurance defense, mediation, and family law. His practice involves representation of employers and defendants throughout the state of Maine and national insurance companies. He has lectured frequently to diverse groups on employers’ and insurers’ rights in the workplace, with an emphasis on litigation techniques, return-to-work efforts, and the interaction of employers and medical care professionals. Nelson also has significant experience representing clients in the area of family law and divorce matters.

So you think mediation might help you resolve an issue causing stress in your life?  These suggestions will help you come up with a short list – two or three mediators who would be acceptable to you – who might be right for your case:

Ask around. Friends or family members might have worked with a mediator in the past and may be able to suggest someone (or someone to avoid!). Even if they worked with the mediator in a court mediation, many court mediators also offer private (not court-provided) mediation services.  Since mediation is a form of alternative dispute resolution (ADR) and often used to avoid litigation, most lawyers are familiar with mediation and may be able to recommend mediators who might be able to address your dispute.

Stay right here on the Maine Association of Mediators (MAM) website. Use the “Find a Practitioner” tab at the top of our home page.  You can search by location or  by practice area to get a list of practitioners offering mediation services. Mini bios, contact info, and links to practitioner websites will help you to narrow your search.

Decide on the mediator qualifications that are important to you. Many mediators are lawyers or are legally trained. Some have backgrounds in social services, education, the ministry, or other fields.  Others have specific knowledge of an industry, profession, or other substantive topic. Many mediators have the skills to be helpful to parties with a wide range of disputes; others have specific knowledge of an industry, profession, or practice area (like divorce and family matters, real estate, construction matters, or business).  You can peruse the MAM mediator list for mediators with the specific expertise you want.

Ask questions. We recommend that you interview two or three mediators on the phone or via email to determine which one is right for you.  Beyond being in the right area of focus, the mediator you choose should feel right to you, meaning that you should feel comfortable with their style and confident in their capabilities.

Here’s what you’ll want to ask:

♦  How does the mediator charge (flat rate or hourly)? If hourly, what is the rate and does it apply only to face-to-face sessions or also to preparation (reviewing documents, etc.) or writing up any agreement reached in session?

♦  How is travel by the mediator charged: by the mile, at the hourly rate, no charge if local, etc.?

♦  What is the mediator’s education and professional background?

♦  How long has the person been a mediator and what types of disputes does s/he typically work with?

♦  Does the mediator have any conflicts or potential conflicts of interest with . . .[names of parties or businesses, subject matter of dispute, etc.]?

♦  How many mediation sessions might it take to resolve your particular issue(s)?

♦  What style or model of mediation does the practitioner follow and what does that mean for you in terms of how the mediation process will go?

Get the other party on board. Because mediation involves at least two parties, all parties must agree on the mediator. With that in mind, you’ll need   to give your top two or three choices to the other party for their consideration. It might be helpful for you to explain how you arrived at your top choices. You will also want to invite the other party to suggest additional candidates for your review.

If you go into the mediator selection process with the goal of finding a mediator who truly resonates with you and your opponent, you are more likely     to arrive at an outcome through mediation that satisfies you both.  Thankfully there are many talented mediators out there. We wish you (and the other party) the very best with whoever you select.

Good luck!

About the blogger:

Barry L. Kohler is a mediator who is an attorney, a Certified Financial Planner, and has served as the director of a bank trust department. His current mediation practice is primarily related to family matters and matters involving families and money, but he selectively accepts other types of cases. He serves on the Maine Court Alternative Dispute Resolution Services (CADRES) roster, is a FINRA-qualified arbitrator, and has served on a Maine Medical Malpractice Screening Panel. Barry has a B.A. degree in Philosophy from University of Pennsylvania, and a law degree from Cornell Law School. He mediates regularly in Portland, Lewiston, Bath-Brunswick, and various York County towns.

So you are dealing with some sort of conflict in your life. How do you know whether there should be a formal effort to resolve this conflict, and if so, what kind of formal effort? Would mediation be useful?

These steps will help you to figure out whether mediation might be the answer:

1. Determine the nature of your conflict. A certain amount of conflict is inherent in all aspects of our lives: family, neighborhood, circle of friends, employment, and extracurricular activities. At lower levels, conflict is normal, and can actually be helpful by inspiring creativity, prompting problem solving skills, and making some mundane matters seem more interesting. But at some point conflict can become corrosive and unbearable, and can put your personal and business relationships at risk. The cost to you can be either emotional, economic or both, and can have an ongoing negative impact on your quality of life. If you are at this point, start thinking about some sort of conflict resolution.
2. Take a mental inventory of possible approaches. If your problem is marginal, sometimes a “wait and see” approach may work. Some conflicts fade with time, whereas facing them head-on with the other party might keep them alive. Politely expressing your concerns and asking to talk about them might be a good place to start and could lead to a solution if the other party shares your desire to iron things out.But if your particular conflict is especially intense and/or of long duration and your communication history with the other party is not good, it may be time to think of a more formal conflict resolution; perhaps one that you and the other party could enter into voluntarily to more efficiently deal with the conflict. Put another way, is there some method, short of going to court, with all of the delay and expense involved, that could be used to solve or mitigate the conflict?
3. Consider whether the other party is up for it. Mediation is really just a structured form of negotiation, and it requires that both parties recognize that a problem exists and share the goal of resolving the problem sooner than later, with less rather than more expense. Both parties have to be willing to talk, and to listen to the other party’s concerns, for mediation to have a chance to work. The mediator will not make any decisions; the parties themselves will have to craft a solution with guidance from the mediator.

   Each party has to accept the fact that neither party in a mediaiton is supposed to “win” or “lose,” and a successful mediation will produce a negotiated agreement that will be fair to both parties. If you think that these conditions might prevail in your case, you should consider proposing to the other party (or parties) involved in the conflict that mediation be tried as a way to solve all or at least part of the conflict.

What it comes down to is that mediation, on one hand, occupies a negotiation midpoint between informal discussion and, on the other hand, a formal adversary proceeding whereby the outcome is determined by an objective party (such as an arbitration or court proceeding.) Each remedy has a proper place, depending on the nature of the conflict, and you may proceed from one to the other in your quest to resolve your unique situation. The advantage of mediation is that you and the other party have a chance to custom-tailor your own solution to the problem. And if mediation doesn’t do the trick, the other remedies can still be pursued.

About the blogger:

Peter L. Curry is a retired attorney with extensive career experience in the investment management industry. He has mediated in Maine and Massachusetts in commercial and family matters. He has also served as an arbitrator for FINRA. Peter has a B. A. degree from Princeton and a J. D. degree from Columbia Law School, and served for 3 years in the US Marine Corps.       

Listen to this Ted Talk by William Ury, author of “Getting to Yes”. Mr. Ury offers an elegant, simple (but not easy) way to create agreement in even the most difficult situations — from family conflict to, perhaps, the Middle East.