Mediation Tips

Elder and dependent adult abuse is a serious problem in our community. Attached is a publication to help us recognize elder and dependent adult abuse and learn what to do about it. Elder Abuse -- Guidelines for Professional Assessment and Reporting (2018) was written by the Elder Abuse Task Force of Santa Clara County. It is current as of 2018 and is being provided for general educational purposes. It is not intended to replace your own reading and command of the elder and dependent adult abuse reporting law contained in California Welfare and Institutions Code section 15600 and following sections, nor to replace the advice of an attorney where appropriate. This publication is written for professionals, but others in our community can also benefit from the information presented regarding elder and dependent adult abuse. Thank you for helping protect vulnerable elders and dependent adults. The Elder Abuse Task Force of Santa Clara County.

Recognizing and Reporting Elder and Dependent Adult Abuse

The new problem of estate planning: longevity

All practitioners involved in trust and estate planning are facing the same challenge .i.e. the increase in life expectancy. As a result, drafting estate plans for people who are about to die is not enough anymore. You will find below a synopsis of why everyone needs to adapt to the fact that people live longer and how it impacts the estate planning requirements of the elders and their families both pre- and post-mortem.

Pre-mortem, the needs of the elderly have changed drastically: nowadays, the issue is not what happens when we die. It is what happens depending on their life expectancy! To put it simply, pre-mortem estate planning has become retirement and wealth planning for the long run and post-mortem is simply a question of anticipating the conflicts that might occur due to the increase in life expectancy. Post-mortem, the heirs end up with less money than expected because their parents live longer and they will have, more often than in the past, to personally contribute to the welfare of their loved ones. As a consequence, as mediators, we see more and more conflicts taking place before and at the time of inheritance.

1. Draft an estate plan that will not outlive the elders income

The first rule is to make sure that your clients will be able to pay for their basics needs until they die. As a consequence, when you itemize the elders incomes and wealth, get one step further and seek the "hidden value items" that your clients or parents might not think they are worth a fair amount of money . This way your clients/parents will be in a position to decide what to keep and what to sell before their passing. This will also have a collateral positive effect for the heirs who are too often lead to believe that some items are very expensive when they are not and vice versa.

Examples of such items include:

  • Collectibles (e.g. paintings, books, antiques, dolls)

  • Jewelry

  • High end vintage clothing (e.g. shoes, handbags)

  • Tableware (e.g. silverware)

  • Musical instruments

  • Furniture

  • Chandeliers (e.g.crystal chandeliers)

  • Old cars (e.g. bikes, motorcycles)

  • Value of real estate properties: This is the one of the items about which heirs and collaterals fight the most about. This is why it is essential to have a professional such as property inspection company check the physical condition of the property. It is crucial to know whether or not the house is in good condition. Bear in mind that deferred maintenance items will impact not only the fair market value of the property but also the comfort of the elders and their ability to stay in their home. Also, depending on the outcome of the evaluation, family members, trust and estate professionals might need to assist the elders through the sale or the lease of their property and/or help them find an acceptable housing alternative.

2. Be proactive: Once a year, reach out to your clients and ask them if their personal and/or financial situation has changed ( e.g. if they retired, sold a business, won the lottery, bought expensive things, had a grandchild to whom they would like to make a donation)

3. Include a mediation clause in your estate planning package for issues between the trustees and between the trustee(s) and the other parents (siblings, step mom, dad, etc)

4. Act before it is too late: nowadays people are incapacitated ( physically and/or mentally) later in life but they all share the same demeanor : being the prey of greedy persons. Having more than one trustee can be useful as they can share the load work and watch each other(s)

5. Always add a letter of intent for the funeral expenses

6. Identify, locate and contact heirs as part of your estate planning preparation and keep in touch with them on a regular basis

7. Solve as many conflicts as possible before they arose is the aim game. Due to their parents increased life expectancy the heirs will, most likely, be older when they will inherit and they will receive less money than before. Instead of in- cumulating they will de-cumulating. Unfortunately, lots of people still include their inheritance in their own retirement plan. Therefore, it is good practice to gather the following information:

  • Learn about the heirs financial situation and how they can help their elderly parents: a small contribution now might be better than a huge one in a decade from now.

  • Learn about what bother them as well as the current family dynamic.

  • Make sure that the heirs are informed that they might not inherit was they expected and may even have to contribute to the welfare of their loved ones.

 We hope this helps and will allow you to have a more holistic vision of what could be done to avoid family feuds in the future.


Adventurous Thinking: The concept behind the idea

Mostly used and taught in the corporate environment, we have decided to apply this technique to our mediation process because it is simple and efficient. 

The idea behind the concept of Adventurous Thinking (AT) is quite simple: What if you thought differently than you usually do, in a given situation, because you have been challenged to think differently ? AT is a method to change the way you normally think which allows you to come up with different ways to solve an issue.

For example, if you always drive to work the same way every day, you probably don’t notice the houses, the intersections, the stores on your route anymore. You have become so accustomed to seeing them every day that you no longer are really aware of them. If you were to drive to work on a different route, you would systematically be more aware of similar objects on this route. What changed ? You are still driving your car, you are still going to the same destination but because the route does not fit into the scope of your routine you pay more attention to your surroundings.

Adventurous Thinking applied to mediation operates exactly the same way. You have your own perception on how the dispute should be solved and why, based on all the thoughts and introspection you put into it. As far as you are concerned, your solution to the problem is clear and undeniable. You have the arguments and the logic to demonstrate it. You routinely reflect on your alternative to solve the problem and find nothing wrong with it. Consequently, the more you think about it the more you are convinced that your solution is the only alternative.

Now if you consider that the other party is probably thinking the same way you do and also consider that their solution is legitimate, we end up with 2 affirmative solutions to a problem that has not been solved. Under these circumstances, AT will help each party expands his or her ability to see the issue from another perspective.

AT is the combination of the latest research on neural pathways with modern design thinking. AT uses tools and techniques that allow every user to be more actively curious and more consistently innovative. As described by Sally Dominguez the guru of AT, "AT develops an agile mindset by deliberately provoking participants into a thinking state where they are required to develop new neural pathways as alternatives to their expert state of mind. This expert state of mind translates in a mediation process into the "routine and affirmative" thinking described above."

AT is based on the cumulative use of 5 tools known as the Five Lenses. The Five Lenses enable groups and individuals to prolifically and quickly uncover options that can improve problem solving challenges.

The five lenses for AT are as follows:

1. Negative Space is what is NOT. Negative space is that physical, emotional and longitudinal amorphousness that is NOT the focus or the subject, but the physical, durational and perceptional context in which it exists.

2. Thinking Sideways is an extension of empathetic thinking and builds awareness of how our personal preferences dictate the way we interact with others. Sideways Thinking is valuable for understanding how your personal tendencies might be compromising your decision-making and interactions with others.

3. Thinking Backwards uses life cycle analysis information to consider where a project ends, and how the elements and functions that make up a dispute, can be improved.

4. Re-Thinking involves rediscovering and exploiting your core values. It is an extreme lens for reconsidering a situation as a resource and the tools to pivot and proliferate.

5. Parkour Thinking is the most risk-positive thinking strategy. When successful, it results in an improbable innovation leap. Otherwise, it sheds new understanding and meaning on wicked problems.


Mediation saves time and money

Many mediations are completed in one meeting thereby saving time and money.

Mediation allows the parties to participate

In mediation the parties can openly discuss their views on the dispute and fully participate in forming a resolution to the dispute.

Mediation is fair and neutral

All parties can participate in the process and determine the settlement. The mediator is neutral and serves to facilitate the discussion but does not act as a judge. There is no determination of right or wrong.

Mediation is confidential

Information disclosed during a mediation is confidential and cannot be used later in court. Therefore the parties can feel free to discuss their position without worrying that it will be used against them later.

Mediation encourages cooperation

Mediation creates a place where the parties can openly talk about their perspective on the dispute. The mediator can facilitate the discussion and the parties and can work together to create a resolution.

Mediation allows the parties to design their own resolution

Mediation can allow the parties to reach a full resolution of all issues.

With mediation, everybody wins

Surveys have shown that parties who used mediation would use it again.

Alphabet of Do and Don't During A Mediation For Participants And Their Counsels

A – Authority

Your client, the opposing party, both, must have the authority to settle.

Having a client who has the knowledge and authority to make decisions is crucial. If you represent someone at the table who has no authority, or the person with authority remains absent, and you have no power of attorney to represent and make decisions, it would surely suspend settlement proceedings and induce mistrust among parties.

B – Behaviour

Prepare yourself and your client to sit across the table with the ‘other’.

Mediation has no scope for sections of the law, court judgements, precedents, and other litigation jargon. The language - both verbal and nonverbal, must resonate a genuine willingness to collaborate. Advise your client against arrogant and defamatory language. Being approachable and available is key to reaching common ground.

C – Caucus

Break into a private session if negotiations are failing.

Be honest with the mediator about your client’s real interests and be prepared to reveal information you have held back in the joint conference.

D – Disagree

If you think otherwise, disagree! A successful resolution depends on your advice.

Mediation is not a space to decide ‘right’ versus ‘wrong’, rather acknowledge and respect the differences and work towards fixing the friction. But, if the other party is peddling erroneous facts or levelling false allegations and claims, then you must step in and contest the same. Disagree, set the facts right, get everyone on the same page and move on. Be decent in dissent.

E – Evidence

Use evidence to substantiate your point, eliminate false claims.

The key is to use evidence to forward your interests and not to destroy the other’s interests. The approach is important - prove your point, don’t get adversarial. Documents or digital evidence can be used to clear doubts, clarify and confirm facts and misunderstandings. Some revelations may be confidential, these may be introduced during caucus.

F – Focus on the problem

It’s natural your client gets emotional, you need to steer the mediation.

Focus on the problem rather than the emotions. Always remember why you are at the table and ignore taunts.

G – Give in, don’t give up</p>

It’s alright to compromise a little, if it satisfies the bigger interests.

Don’t treat it as a step back to agree to some good faith offers and requests from the other party. If it’s letting you get out of an impasse and is moving the negotiation forward, it is certainly a step in the right direction. Evaluate and analyse offers without emotions, match them to your core interests and take a calculated decision.

H – Humour

If your client can’t hold it together, you gotta lose it before she/he does.

Your sense of humour will help you get out of tough situations. If you feel your client is giving in too much or speaking more than he should be, you can always barge in with a joke. Interject with some wit, navigate a break and immediately provide counsel in private.

I – Interests

There will be many, prioritize them.

Prioritizing your interests will help you decide where you can go easy and where you need to be tough on what you want out of the mediation. Help your client discover his / her interests in the conflicting situation. Be smart about short-term needs and long-term goals.

J – Justification (Don’t)

No room for screaming excuses for your client’s behaviour.

“We regret it, but…” is a terrible way to start. Even worse is blaming your client’s behaviour on someone or something, when what he/she did was unpardonable. An apology goes a long way in breaking down egos and anger. Encourage your client to be honest and accept that there he/she might have contributed to the conflict at some stage.

K – Keep the communication on

Even in chaos, make sure your client is still in dialogue.

It is hard to reach common ground (forget resolving) if the parties don’t dialogue. Therefore, don’t cut people off when they speak, avoid interruptions and never fend off an idea – no matter how ridiculous it sounds. Try and bridge the communication gap – seek clarifications, confirm details, clear doubts, address misunderstandings, make changes in communication patters.

L – Legal Issues

Identify and analyse the legal issues in your client’s case.

Knowing your client’s legal premises is only the beginning. Understanding the position and anticipating their alternatives out of a mediation setting is the next step. There may be some issues in the agenda that cannot be mediated it does not mean you cannot mediate the rest of the issues.

M – Man marking

As much as possible, direct your conversations to the other party’s counsel.

Address only those matters which deal with business, liabilities and legalities, don’t get involved in the personal matters. Leave the emotions to your client, focus on the problem.

N – No Adversarial Jargon

Your verbiage must be strictly collaborative without taking away the edge.

This doesn’t been you become 100% accommodating and compromising, let your competitive personality stay with you, but avoid adversarial language like – precedents, witness, arguments, issues,opposition party, responding party, defendants, etc...

O – Orientation

Acquaint your client with your role, the process and possible outcomes.

It is important to make your client understand that you are not his/her litigating lawyer in a mediation session, but a ‘Resolutionary’ one, and so, your role is different. Explain the process and the principles of voluntary participating, confidential conversation and neutral facilitation. This, of course, is something you would do much before you get to the table.

P - Privacy

Explain confidentiality, the extra layer of security during Caucus.

It will create an atmosphere of trust and allow your client to be more open with her/his intentions and interests and more inclusive with his option generation. He/She must be reminded that anything said or heard cannot be presented in court and cannot be used as evidence before a judge.

Q - Questions

Question must facilitate dialogue, not curb it.

There is no scope for interrogation or cross-examinations, but you may ask innumerable questions.Close-ended questions make people defensive and nervous, producing dishonest and cautious responses. Open-ended questions allow honesty and frankness.

R – Research

Spend time researching, before brainstorming solutions.

You must be careful with the options you generate – check good practices and alternatives available, before deciding to make an offer. You must help your client look at his / her strengths and weaknesses and the other party’s too.

S - Sign

Before you seal it, check for air bubbles.

Be prepared to sign a settlement agreement. Stalling can lead the other party to lose trust or change his/her mind. Check for timelines, deadlines, liabilities, capability of commitments, and every small detail before signing.

T – Tough on problem, soft on people

Respect emotions, but don’t lose focus of the job.

Cut the person some slack on the emotional and psychological aspects of the case, but don’t compromise on your priorities and needs that you bring to the table. Encourage your client to listen emphatically, acknowledge and reflect good vibes. Summarise and rephrase negative language.

U – Use tact when at Impasse

Sensitivity and skill go hand-in-hand at Mediation .

Change perspectives, take a break, move to another issue on the agenda, call for a cross-caucus, explain consequences of mediation failing, highlight positives, encourage client to express change in approach, reframe negativity, rework reservation points, prioritise relationship over resolution and if needed, reschedule session.

V – Vetted Agreements

Make sure you have it examined by the best in the business.

If there are technical pointers in the clauses of the contract, it is very important that a lawyer gets these scrutinised by experts from that field if needed.

W – Win-win approach

Move away from the “win at all costs” attitude.

Everything you and your client does has to convince the other party and his/her counsel that you two are being collaborative and working in good faith to resolve. The options you generate must be mutually satisfying, therefore adding value and enhancing the appeal of a proposed solution is key to getting the other party to participate in problem-solving. Don’t be afraid to ideate and think out-of-the-box.

X – The X-Factor

It’s time to show-off the learnings of law school.

You have something your client doesn’t – the understanding of the law. Go well prepared and whenever the opportunity arises, take a break and explain the legal aspects of whatever your client is proposing or accepting or rejecting. Be ready with advice and suggestions and counsel your client in private, which will convince him/her you are working as a team.

Y – Your Role

Mediation is a self-determined process, neutral party cannot force settlement.

Let you client take the decisions, this way her or she will feel empowered and find the process more inclusive. If it’s resolved – you benefit on time and costs, just like your client. Keep it brief, persuasive and focused. This is good time to politely let the other party know “the case will be lose-lose in court” and “mediation is best for both”.

Z – Zsilence (The z is silent)

Silence is powerful – it keeps the other party grounded.

Anything that is unknown and unreadable makes someone engaging in it uncomfortable. Remember, you are the sidekick in this battle. Let your client take the lead, and you anchor this teamwork. Especially when things get heated up, try and use lesser words. Budget your words when it gets argumentative. The more you listen, the more information you draw. LISTEN - it makes you stand out from being an adversarial lawyer who only speaks!

Source: by Jonathan Rodrigues -Jonathan is the co-founder and partner at The PACT. He is the founding - president of Lex Infinitum, Goa and Intercessionis, Pune. He is the co-creator of Advocate Maximus, the arbitration-mediation competition premiering in New Delhi in 2018.