1. Methodologies in Elder Mediation
Presentation to CLE BC Elder Mediation Course
Wednesday, May 16, 2012
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By Nicole Garton-Jones, B.A., LL.B. /J.D., FMC Cert. CFM

2. What is Mediation?
• “ The process by which the participants
together with the assistance of a neutral
person or persons systematically isolate
disputed issues in order to develop options,
consider alternatives, and reach a consensual
settlement that will accommodate their
needs"
• In short, a mediation is designed to settle or
resolve a dispute.
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3. Core features of any mediation:
• A process or a method;
• In which the relevant parties and/or their representatives;
• With the assistance of a third-party, the mediator;
• Attempt, through discussion and negotiation, to make
decisions;
• Which the parties can agree to.
In essence, any mediation can be thought of as a process of
facilitated decision-making or facilitated negotiation.
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4. Variable Features of Any Mediation
• The degree to which it is entered into
consensually or is mandated by the
legislature, courts or contract;
• The extent of the parties' choice of mediator;
• The qualifications, expertise and skills of the
mediator;
• The independence and neutrality of the
mediator;
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5. Variable Features of Any Mediation, cont.
The extent and nature of the mediator's
interventions;
The mediator's responsibility towards the
parties, outsiders and standards of fairness
and reasonableness;
• The extent to which it has a therapeutic or
educative function;
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6. Variable Features of Any Mediation, cont.
• The degree of confidentiality of the process;
• The extent and nature of the rules and
procedures followed;
• The status of any settlement outcome;
• The extent to which past controversies are
canvassed and future interests are taken into
account.
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7. What is Elder Mediation?
• the mediation of disputes that arise in the context of
aging;
• One or more of the parties will be an older adult or
the issues in dispute will be ones of particular
significance to older adults;
• The issues and parties are often intra-familial, but
can involve third parties such as housing providers;
• tends to be multipartite and involve family and
intergenerational dynamics.
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8. What is Guardianship Mediation?
• the use of mediation in guardianship
proceedings to resolve disputes related to the
decision-making capacity of an adult;
• While the respondent in a guardianship
application is often an elderly person, adult
guardianship is not restricted to the elderly
and guardianship mediation is not exclusively
a subcategory of elder mediation;
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9. Unique Components of Elder and
Guardianship Mediation:
• Issues at hand
• Specific ethical challenges, including whether
the older person should participate at all
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10. Models of Mediation
• generally thought to be four overlapping,
though different, models of mediation:
– Settlement;
– Facilitative;
– Therapeutic/transformative; and,
– Evaluative.
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11. Settlement Model of Mediation
• intended to encourage incremental bargaining towards a
position of compromise;
• mediator will tend to accept the self-definition of the dispute
provided by the parties;
• function of the mediator is to determine the 'bottom line'
positions of the parties and through interventions of varying
degrees of persuasion and encouragement, to move the
parties off these positions to a point of compromise;
• mediator likely to be a 'high status' individual and will not
necessarily have a high level of proficiency in the process and
techniques of mediation.
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12. Facilitative Model of Mediation
• process is intended to focus on the parties' underlying needs
and interests;
• function of the mediator is to prevent the parties from
lapsing into incremental bargaining by continually
emphasizing their interests, by drawing attention to common
or mutual interests, by encouraging value creation, and by
fostering creative settlement options;
• mediator will not suggest solutions or direct proceedings, but
will assist the parties to make a reappraisal of the situation
and reach a practical settlement of their own;
• Mediator likely to be an expert in the mediation process and
techniques and may also have knowledge of the subject-
matter in dispute. 12

13. Therapeutic/Transformational Model of
Mediation
• intended to deal with underlying causes of the parties'
problem as a basis for resolution, as opposed to mere
settlement, of the dispute;
• Resolution implies some degree of reconciliation between
the parties;
• function of the mediator is to diagnose the causes of conflict
and to work through the psychological and emotional aspects
of the conflict so that the parties come to terms with its root
causes;
• an expectation that the mediator will have expertise in
counseling and in mediation techniques. The emphasis is on
therapy, either at the pre-mediation stage or during the
mediation process. 13

14. Evaluative Model of Mediation
• an expectation from the parties that the mediator will use
expertise and experience to direct the settlement towards
the anticipated range of outcomes for the particular dispute;
• Focus on rights and substantive interests
• A sub-set of evaluative mediation is advisory mediation in
which the mediator is asked to make recommendations as to
how the dispute should be settled in the event of the parties
being unable to reach agreement.
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15. • recent commentary has pointed out that
most mediators draw on a number of
different models and are not restricted to
one particular model in their mediation
techniques
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16. Recommended Models for Elder and
Guardianship Mediation
• The Report, in its recommendations for any court-
connected guardianship mediation program, stated
that it should utilize a non-evaluative, interest-based
mediation model. The Report further stated that
most experts recommended a facilitative style
mediation;
• The Report also noted that one of the strongest
consensuses amongst experts and stakeholders was
the need for pre-mediation meetings with each
mediation participant as part of any elder or
guardianship mediation model.
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17. Why Pre-Mediation Meetings?
• help to ensure that the voice of the older
adult is included in the mediation;
• enable the mediator to identify and better
understand family and relationship dynamics;
• provide the mediator with the opportunity to
identify any potential power imbalances in
advance of the mediation session, as well as
screen for abuse.
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18. Why Pre-Mediation Meetings, cont.:
• provide the mediator with the opportunity to
explain the process to the parties, including
roles, rights and responsibilities, as well as
establish a relationship of trust prior to the
joint mediation session;
• mediator can help parties identify issues for
mediation in advance of the mediation.
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19. Why Pre-Mediation Meetings, cont.:
• provide the mediator with the opportunity to
identify potential non-party participants who
may be valuable or necessary to the success
of the mediation;
• provide the mediator with the opportunity to
assess the capacity of each party to
participate in the mediation and any supports
needed.
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20. Co-mediation
• where two or more parties act as mediators;
• provides the opportunity to achieve a
representational 'balance' in the mediation team;
• Balance can be particularly important where there
are value conflicts arising from differences of age,
gender, religion or culture;
• Report recommends co-mediation as an ideal model
for the multi-party and multi-issue milieu of elder
and guardianship mediation, if resources permit.
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21. Benefits of Co-Mediation
• allows the co-mediators to model good
communication and negotiation skills
between themselves;
• allows for a division of labour, e.g. between
active listening and recording, focusing on
substantive and psychological issues;
• allows for specialist expertise, e.g. having a
skilled mediator and a practitioner from the
subject area of the dispute;
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22. Benefits of Co-Mediation, cont.
• provides an apprenticeship system for new
mediators;
• provides each co-mediator with strategic and
moral support;
• encourages rigorous debriefing of and
reflection on the mediation.
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23. Disadvantages of Co-Mediation
• There can develop a good/bad cop routine
between the co-mediators;
• Successful co-mediation requires training,
thorough preparation and compatibility
between the parties;
• Conflict between co-mediators might disrupt
the process;
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24. Disadvantages of Co-Mediation, cont.
• Co-mediation might take longer and be more
expensive for the parties;
• There no independent evidence to suggest
that co-mediation produces a higher
settlement rate;
• Each side might perceive one of the co-
mediators as their champion.
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25. Multi- Party Mediation Methodology
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26. Multi- Party Mediation Methodology
• Lawrence E. Susskind and Jeffrey L.
Cruikshank in Breaking Robert’s Rules set out
an effective methodology for multi-party
dispute resolution
• a consensus building approach can yield
agreements that satisfy the competing
interests of many parties, save time and
money and improve long-term relationships.
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27. Consensus building: A five-step process
1. Convene the group
2. Assign Roles & Responsibilities
3. Facilitate Group Problem Solving
4. Reach Agreement
5. Hold Parties to Their Commitments
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28. 1. Convene the group
• Initiate discussion
• assess the issue(s) to be addressed
• identify appropriate parties at the table
(should the older person participate? If not,
should the mediation proceed? If so, how
should the older person participate?)
• Decide whether to commit to a consensus
building approach (“CBA”)
• ensure all parties agree with the process
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29. 2. Assign Roles & Responsibilities
• Specify who will take responsibility for convening,
facilitating, recording, mediating/facilitating
meetings, representing key parties and providing
expert advice, if any required
• Set rules regarding the involvement of alternates
and observers
• Finalize the agenda, ground rules, plan and budget
in writing
• Assess options for communicating with the parties
present, as well as parties not present
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30. 3. Facilitate Group Problem Solving
• Strive for transparency
• Seek expert input where appropriate
• See to maximize joint gains through
brainstorming
• Separate inventing from committing
• Use the help of a skilled facilitator
• Use a single text procedure
• Modify the agenda, ground rules and
deadlines as you go
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31. 4. Reaching Agreement
• Seek unanimity on a written list of
commitments
• Use contingent commitments, if appropriate
• Adhere to agreed upon decision-making
procedures
• Ask who can’t live with the proposed solution
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32. 4. Reaching Agreement, cont.
• Ask those who object to suggest
improvements that would make the package
acceptable to them without making it
unacceptable to others;
• Keep a written record of all agreements;
• Maintain communication with all relevant
parties;
• The goal is unanimity, but overwhelming
agreement is sufficient.
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33. 5. Holding Parties to Their Commitments
• Seek ratification by checking back with all relevant
constituencies
• Ask all parties to indicate their personal support by signing
the proposed solution
• Present the recommended solution to those with authority
to act
• Look for ways to make informally negotiated agreements
binding
• Reconvene the parties if those in authority cannot live with
the solution
• Monitor changing circumstances during implementation and
reconvene if necessary
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34. Being a Good Facilitator:
• Assessing, with the participants, the situation
and determining whether CBA is appropriate
• Designing, with the participants, ground
rules, a work plan and other mechanisms to
guide the process
• Managing relationships and communication
among the participants (and with their
constituencies)
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35. Being a Good Facilitator, cont.
• Training the participants in negotiation and
consensus-building skills (if they request such
assistance)
• Facilitating meetings, assisting in preparation
for meetings and preparing summaries of
meetings
• Respecting confidentiality in all interactions
with stakeholder participants and with the
convener
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36. Being a Good Facilitator, cont.
• Enforcing the ground rules agreed upon by the
participants, including confronting any participant
(or observer) who is not abiding by ground rules
• Mediating specific issues, including shuttling back
and forth among the participants clarifying interests
and positions
• Fact-finding in relation to a specific issue in
circumstances where the participants are
comfortable with that arrangement, including
organizing expert reports
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37. Being a Good Facilitator, cont.
• Preparing a written draft (“single text”) containing
the final solution and sounding out the participants
on their willingness to “live with” the agreement
• Ensuring that the participants check back with their
constituents and sign a statement indicating their
personal support for implementation of the
agreement
• Monitoring implementation and the need for
possible modifications to the agreement
• Reconvening the parties, following procedures
spelled out in the agreement
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38. Thank you!
Nicole Garton-Jones, B.A., LL.B/J.D., FMC Cert. CFM
Heritage Law
Tel: 778-786-0615 ext.111
Email: nicole@bcheritagelaw.com
Website: www.bcheritagelaw.com
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