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If you’re unhappy with your mediation outcomes, could it be your mediator was not qualified?

After speaking with many people in various social media groups that discuss legal issues, it became apparent that many people are disillusioned with their mediation experiences, somewhat baffled by this,  I was determined to find out what is the cause of such ill-feeling towards mediation.

After numerous discussions, what became abundantly clear, was in many cases the Mediator was not qualified as a Mediator,  yes they may be legal professionals,  lawyers, barristers, court registrars etc who are very familiar with the law and can grasp the legal implications of a case, but the problem here is…. they are not mediators,  when mediating they are not there to give legal advice or opinion.  That is the job of the lawyers representing the parties.

So with no formal mediation qualifications or training, the ad-hoc mediator enters the fray,  puts on his mediator hat and now hopes for the best that they can help the parties negotiate a deal with some sort of guidance from the wannabe mediator.

On top of that to add insult to injury the parties are forced to pay exorbitant rates for this so called mediation,  with costs ranging from $7,500 to over $13,000 for the day of Mediation being commonly quoted.

In contrast, highly experienced, qualified mediators who are trained to NMAS standards and registered with the Mediator Standards Board according to rates paid by Government agencies for mediators who have to maintain an 80% success rate[1] in their performance and resolution of cases only get $1,350 per day[2].

So before you chose your next mediator or accept one to mediate your case click here Mediator Standards Board and see if their name is listed to show they are qualified and trained to National Standards.

If you would like a free, no obligation consultation with a nationally qualified mediator simply complete the form below and we will call you to discuss whether mediation could help you.

 

Footnotes 

[1] Victorian Small Business Commissioner, Mediation Panel Policy for Appointment of Mediators, accessed here on 06/13/18 at 10.56am, https://www.vsbc.vic.gov.au/wp-content/uploads/2017/09/VSBC-Mediation-Panel-Policy-for-Appointment-of-Mediators.pdf.

[2] Victorian Small Business Commissioner, Mediation Panel Fee Policy, accessed here on 6/13/2018 at 10.54am  https://www.vsbc.vic.gov.au/wp-content/uploads/2017/09/VSBC-Mediation-Panel-Fee-Policy.pdf.

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Active Preparation Leads to Better Mediation Results

After have deciding to mediate and selecting a mediator, each litigants’ focus should shift to preparation.  In our experience, mediation results improve significantly when the parties, not just the attorneys, come prepared for mediation.  This post offers 7 pointers for parties to follow when preparing for mediation with their lawyers.

  1. Participate in Drafting the Mediation Statement. The written mediation statement primarily serves to inform the mediator of the issues in the case, the parties’ respective positions, and the real points of contention.  Because the parties usually have a deeper understanding  of the factual and economic issues in a case, the parties themselves need to be involved in the process of finalizing the mediation statement.  The parties may suggest important points, such as a crucial missing fact or a tweak based on a business goal.
  2. Analyze the Parties’ Leverage. Depending on a variety of factors, such as the relative strength of the parties’ positions or time pressures facing a particular party, the parties may possess different types or amounts of leverage.  Spend some time speaking with counsel regarding which party has the upper hand, how, and why.
  3. Brainstorm in the Abstract and Specific. In thinking about resolutions to propose at mediation, think strategically.  And be specific.  Considering abstract concepts is helpful, but do not stop there.  Think about how specific terms may get fleshed out in the ultimate agreement.

For example, if a manufacturer is in a dispute with the designer of its Customer Relationship Management (“CRM”) system, the manufacturer may be willing to continue using the CRM if the software vendor will agree to provide technical support for a period of time.  That concept may be a crucial component of a mutually agreeable settlement, but the manufacturer should consider the necessary details – how many months or years would the technical support be needed, how many hours per week or month must the designer be willing to commit to, who at the vendor will provide the technical support, and will the technical support include adding features or providing updates?

Considering the details before mediation will highlight potential problems and increase the likelihood of reaching a concrete mediation settlement.

  1. Think Creatively. Resolving a case before trial, whether by traditional settlement or through mediation, has many benefits, such as avoiding potential liability from an adverse result, avoiding additional attorneys’ fees and litigation costs, ceasing interruptions of employees’ and leadership’s time, and relieving the emotional stress created by litigation.  Further, the American justice system does not often render “compromise” results.  Mediation, on the other hand, empowers the parties to employ self-determination.   For example, in a dispute with a supplier regarding the sale of goods, the parties could agree to a settlement that includes discounts, premiums or other accommodations in future transactions between the parties.  A judge or jury could not award such a remedy.
  2. Consider the Other Side’s Perspective. As the old saying goes, “you cannot understand another until you walk a mile in his or her shoes.”  Ask: if the opposing party performs this same analysis, what leverage will the other side perceive and what potential resolutions might be suggested?  Sticking points and pitfalls may become clear.  For example, in a warranty dispute, the seller may be much more interested in the message sent to other buyers by resolving the case at hand than the actual amount of money paid for the settlement.
  3. Set (Compromise) Goals Before Mediation. Litigants should approach mediation and their strategy with a goal in mind.  In the adversarial process, most want to “win.”  But one must ask, “What does winning mean in the context of mediation?”  Mediation is not a trial, and if one approaches mediation with the goal of “winning” by getting everything available at trial, mediation almost certainly will not be successful.  In other words, parties should seek to resolve the case on terms that are acceptable but not perfect.
  4. Communicate with Counsel. The lawyers almost certainly have been through mediation more times than the parties, and they can offer insight into the legal aspects of the case at play.  Hopefully, the lawyer may also serve as a business counselor based on his or her experience, helping to identify business goals and mediation tactics to align with those goals.  Most importantly, if the lawyer does not fully understand the client’s goals, he or she may utilize a strategy that is not best suited for reaching the desired outcomes.

The key takeaway is that the parties should work closely with their lawyers in preparing for mediation.  The foregoing are not step-by-step directions, but rather an outline to use in formulating the appropriate mediation strategy and goals.  Stay tuned for our next post, discussing tips for the day of mediation.

Source : The National Law Review 

For further information or a free consultation, please use this form to contact us.

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Financial abuse of the elderly is a growing problem for police, bank workers, and lawyers.

Newly established elder abuse hotlines are being swamped with calls, many of which relate to financial abuse.  Financial advisers, bankers and lawyers are all calling for new measures to address financial elder abuse and the Attorney General, Christian Porter, has flagged a ‘National Plan’ to address ‘elder abuse’ to be released later in the year.

So what should the new measures look like?
Click on the play button to listen to the broadcast on ABC Radio broadcast Presented by Hugh Riminton.

If you are experiencing elder abuse or know someone who is, contact us with the form below.

Mediation is a good way to seek a compromise resolution that preserves relationships. It gets parties who don’t agree to sit down and discuss their differences in a calm, controlled setting. Also, it’s generally less expensive than going through a trial and can keep the messy details of a case out of the public’s eye.

Mediating Elder Abuse Disputes

For elder abuse disputes among family, mediation can be a better way to resolve an elder abuse matter. It causes fewer hard feelings and may lead to a better understanding between parties (this is part of the idea). If you want to be able to sit down with that family member come the holidays, sitting down in mediation is the better option.

 

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When to Use Mediation for Elder Abuse

Mediation for Elder abuse
Mediation and litigation are two different ways to resolve legal disputes. While mediation is often a part of litigation, it doesn’t always have to be. Disputes can be mediated outside of litigation and lawsuits.

There are pluses and minuses for either choice, and either can be the better option depending on the case. If you’re in the midst of an elder abuse case, you may be wonder which one is right for you?

What Is Mediation?

Mediation is considered a form of ‘alternative dispute resolution.’ It involves a neutral third party who facilitates a discussion (between the parties to a legal dispute) focused on resolving the dispute. Over the last few decades, as a result of how successful mediation has become, more and more courts have required litigants participate in mediation or alternative dispute resolution before being allowed to move forward with a trial.

Mediation is a good way to seek a compromise resolution that preserves relationships. It gets parties who don’t agree to sit down and discuss their differences in a calm, controlled setting. Also, it’s generally less expensive than going through a trial and can keep the messy details of a case out of the public’s eye.

Mediating Elder Abuse Disputes

For elder abuse disputes among family, mediation can be a better way to resolve an elder abuse matter. It causes fewer hard feelings and may lead to a better understanding between parties (this is part of the idea). If you want to be able to sit down with that family member come the holidays, sitting down in mediation is the better option.

When Litigation Is a Better Choice

Yet some cases are simply going to trial due to the nature of elder abuse cases. It might involve significant, willful cases of neglect or abuse. Maybe it’s a particularly divisive case that has polarized a family and caused a lot of ill will. Or it might involve such disputed facts and understandings as to the situation that a judge or a jury has to decide it.

While most cases settle before trial, litigation is the traditional way of resolving legal disputes. It’s adversarial, with witnesses, evidence, cross-examination, and arguments. And it’s not to be taken lightly — lawsuits are serious, costly, and can ruin lives and relationships. But sometimes it’s necessary.

So What’s Best for You?

You might have, at some level, an emotional sense of what’s right for your case. Is this something you should work out, or is this something you should stand up for? It’s ok if you don’t know, and it can help to speak to a local mediator and a free consultation by filling in the form below.

Related Resources:

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Elder abuse mediation could be based on child custody model, legal group says

Mediation an answer to Elder Abuse

The family law mediation model has an 80% success rate, National Legal Aid chairman says and it could help in cases of Elder Abuse.

Mediation services developed to deal with complex child custody disputes could be used to resolve cases of elder abuse if legal aid commissions are properly funded, the peak body for legal aid in Australia has said.

The mediation model was developed for use in family law cases and has an 80% success rate, the National Legal Aid chairman, Graham Hill, said.

Hill said the same model could apply to certain cases of elder abuse, particularly when parents are preventing an older person from seeing their grandchild, or in financial disputes where property has become shared.

The suggestion comes as part of a demand for more funding for civil law services to allow legal aid commissions to act in more cases of elder abuse.

“[Mediation] is so much better than court because court destroys relationships …whereas mediation tries to enhance relationships in a family setting,” Hill told Guardian Australia.

“We have put to the Attorney General’s Department that this service could be applied to cases of elder abuse, which can be quite sensitive with family involved.”

At the national elder abuse conference in Sydney on Tuesday the attorney general, Christian Porter, announced a national plan to tackle elder abuse, to be developed by the Council of Attorneys General.

The plan was a recommendation of a report by the Australian Law Reform Commission (ALRC) in June, and will include research to determine the scale of problem in Australia.

As of 2015, 15% of the Australian population was aged over 65. That’s expected to increase to 23% by 2055.

“So whatever the prevalence is, the absolute numbers will increase year after year after year,” Hill said.

Hill said legal aid commissions needed more funding to provide grants of aid and to conduct legal outreach services, which would allow lawyers to go to aged care homes and into the homes of people who are housebound by a carer, who may be the person perpetuating the abuse.

Last year, Australian legal aid commissions provided 1,500 grants of aid for legal representation, 4,000 duty lawyer sessions, and 17,000 instances of legal advice to people aged over 65.

“The family court has said that grandparents do have a right to have contact with grandchildren, but those rights are theoretical until legal aid has the funding to pay for a lawyer to go to court and get an order,” he said.

Porter said the national plan would include achieving national consistency on things such as powers of attorney. Victoria, Queensland, and New South Wales have no requirement for such powers to be registered, which means that financial providers are not able to check if a person who claims to have power of attorney for an older person actually does.

He said the government would also look at introducing a centralised complaint system for people such as bank workers to raise concerns of financial abuse.

“One of the problems that bankers face is that when they see this type of thing at the coalface – when they see suspicious behaviour, if you like – that there’s no centralised point at which they can make a complaint,” Porter said on 2GB radio on Tuesday. “Now, very often it’s appropriate to make a complaint to police, sometimes it might be a public trustee or a public advocacy office, but there’s no centralised way of doing that.”

The draft national plan is due at the end of the year.  In the meantime if you are experiencing elder abuse or know someone that is, why not contact us for a free initial consultation using the form below.

Source : The Guardian

Other Links to help with Elder Abuse

Victorian Government Elder Abuse Services.

Seniors Rights Victoria 

Elder Abuse Helpline