Bonita G. Para, MS, Mediator
Serving Broward, Palm Beach & Miami Dade Counties

Thursday, January 5, 2012

January 2012 "Mediation News"

Welcome to “Mediation News”.
We will include timely articles about the practice of mediation and sometimes, non-identifiable anecdotes and “war stories” from our own practice areas of Elder/Adult Family, Workplace Conflict/Employment and Cohabitation/Divorce mediation.

We hope you will find this information useful and educational. 

Please submit your comment(s) at the bottom of the post; we value your opinions and thoughts on the subject

This Month’s “Words of Wisdom”:
“Conflict is the beginning of consciousness.” -M. Esther Harding

In this edition:
  1.   Workplace War Story: “A Reality Check for the General Manager”
  2. What is elder mediation--and what's in it for the client and the attorney?
   Click on the "read more" link below to access the articles.

“A Reality Check for the GM”
I was called some time ago by the attorney for a Board of Directors of a public transit company. It seemed that there had been on-going conflict between the male GM and the female Director of HR. The Board was desperate to bring peace to this organization as day-to-day operations were being affected by this conflict. The attorney indicated in our initial meeting that the GM would suffer censure from the Board, if there was no resolution.

The GM had not been informed of this plan. The attorney did not indicate what would happen to the HR director as that was not the purview of the Board, but handled at the discretion of the GM.

In separate pre-conference meetings with the GM and the HR director, we discussed the issues around the dispute. The HR director indicated that if mediation did not work, she would initiate a grievance process. When the GM was asked what he would do if mediation did not resolve this conflict, he replied that he would most likely fire the HR director.

Reality check #1
I then asked him what action the Board might take against him, if the conflict continued to disrupt the workplace. There was the expected moment of silence. He looked puzzled and said, “I hadn’t really thought about that.” 

Reality check #2
I continued by asking him if he would like to explore the possibilities. He agreed.

Long story short, the joint mediation conference ended with agreements that put them both back to work. Reality checks can really help!

What is elder mediation--and what's in it for the client and the attorney?

By Pat E. Medford
An abbreviated version of this article was published in the Elder Law Newsletter, Spring 2004, by the Oregon State Bar

What do we mean by the term “elder mediation”? Elder mediation, like elder law, is defined by the client to be served.

Mediation is a voluntary, self-determined process, in which the neutral facilitator works with all the parties to assist them in arriving at their own decisions about how to resolve the issues. The mediator neither takes sides nor judges who is right or wrong, and does not give advice. Discussions are confidential and held in a private, safe setting.  Any agreement reached must be acceptable to all participants.

Elder mediation is mediation of any conflict that involves elders, their family members, or others in their lives. The individual who first contacts the mediator may be, but often is not, the elder involved.

Mediation occurs in a variety of settings and conflicts that involve elders. Sometimes this mediation is given a name that defines the specific subject matter of the mediation. Examples include “adult guardianship mediation,” “family caregiver mediation,” “shared decision making services,” “probate mediation,” ”landlord-tenant mediation,” and “neighborhood mediation.

Situations appropriate for elder mediation

In a holistic approach similar to that of the elder law attorney, the elder mediator is familiar with and capable of dealing with a variety of issues, including:

· Housing/living arrangements
· Caregiving
· Healthcare planning
· Financial management
· Estate planning & probate matters
· Medical treatment
· Guardianship/conservatorship
· Consumer issues
· Social life and activities
· Spirituality and aging
· Ongoing relationships

Elder mediation practitioners are knowledgeable in the field of aging

Elder mediation practitioners are professionals familiar with the aging process and the issues involved. They understand that not all people experience decreased mental capacity as they age. Mediators are connected with the network of local resources and service providers available to elders in the community and have access to the latest updates in the aging field. They are familiar with elder abuse concerns and report new allegations of elder abuse to the authorities for investigation. Mediation would not occur between an elder and another person if elder abuse has been substantiated. Self-neglect does not disqualify a case for mediation.

The elder participates in the mediation

Mediators have an obligation to implement all accommodations that allow elders to participate to the fullest degree possible. This sometimes requires the elder to be represented by an attorney or other advocate. The Center for Social Gerontology in Ann Arbor, Michigan, has devised and tested a decision-making tool that is helpful in determining when and to what extent an elder can participate. More information is available on its Web site at

Elder mediation complements the practice of elder law

Elder mediation is not a substitute for legal advice. Rather, it is complementary to the practice of elder law. Only the court can provide findings of fact or determination of legal capacity. Frequently, however, the conflicts that impede the legal work you are doing for your client involve issues the law does not address. Mediation can bring these underlying concerns to the surface as the needs and interests of those involved in the conflict are identified. In this time of state budget cuts and fewer court and judicial resources, elder mediation can be a particularly cost-effective alternative to lengthy litigation or repeated court hearings for ongoing disputes. A decision to refer for elder mediation leaves a law firm more time to perform the legal work it does best.

Elder mediation can be used throughout the course of an attorney’s work with his or her client. It can precede consultation with an attorney when family members are, for example, arguing over a parent’s care plan or finances. It can be interspersed with a client’s visits to his or her attorney. Attorneys may be consulted during a mediation and, if a written agreement is reached, each participant is advised to consult an attorney before signing. Attorneys often participate in mediation, representing the elder or another participant or serving as legal advisors. Although elder mediation is most effective when it occurs early in a dispute, it is never too late to give it a try.

Benefits of elder mediation

Elder mediation benefits elders, their families, attorneys, and others in a number of unique ways.

Elder mediation provides an opportunity to explore, in a confidential and safe environment, creative win-win solutions that address a broad range of decisions and conflicts that affect an elder’s life. Agreement is not reached unless it meets the needs of all participants—elders (and/or their representatives), family members, caregivers, and other appropriate support persons.

Since the elder is often able to participate in mediation, either directly or with the assistance of an attorney or other representative, the elder’s dignity is maintained by having a voice in the life choices that are made.

Elder mediation provides an opportunity for elders to talk frankly with family members about values they hold and risks they are or are not willing to take. The elder can acknowledge his or her needs for assistance during mediation without fearing that it will lead to a judge’s ruling of incapacity.

If capacity is in question, elder mediation is particularly effective in exploring the least restrictive forms of, or alternatives to, appointment of a fiduciary. If an elder’s defense against a finding of incapacity is questionable, or a client’s support for a petition for appointment of a fiduciary is somewhat weak, mediation may provide more options than a hearing before a judge.

The mediation process can help preserve, restore, or even improve relationships. The process provides a non-adversarial model of communication with which to approach future disputes.

Mediation can provide elder law attorneys with a resource to deal effectively with underlying issues the legal system does not, e.g., intangible values, family history and dynamics, issues of autonomy and safety, interpersonal conflict, quality-of-life choices, etc.

Elder mediation is relatively new

Neither the legal profession nor the public at large has as yet fully recognized the value of elder mediation. A Portland elder law attorney shared his perspective with me that elder mediation is today at the stage of development where elder law was fifteen years ago and private geriatric care management was twenty years ago.

As more attorneys who serve elders understand how this new area of mediation might be just the key to moving a complex case forward, professionals in both fields can communicate to the public the values and benefits of elder mediation.

The author very much appreciates the contributions to this article by fellow elder mediation practitioners Holly Wells and Judith A Chambliss.
Pat E. Medford, of Elder Mediation Services in Portland, is a trained, experienced professional who provides mediation and conflict resolution services to people age 50 and over and to families and others involved with elders, either directly or indirectly. Ms. Medford has practiced elder mediation since 1997 and has mediated Multnomah County small claims and landlord-tenant cases since 1998. She is a member of the Oregon Mediation Association, and Oregon Gerontological Association, and is an associate member of the Elder Law and the Estate Planning & Administration Sections of the Oregon State Bar.  She served on the Portland-Multnomah Commission on Aging, and she managed the Elders in Action Ombudsman for Victims of Elder Abuse program. 


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