Flexibility and elder mediation

The American Bar association has recognised "flexibility" as one of the factors defining high quality mediation practice.

                        

The finding is one of the factors identified by the Association in it's published Final Report-Task Force on Improving Mediation Quality.

While it is good to have some recognizable steps or standardisation in mediation process, the mediator needs to be ever mindful of the range of approaches and tools in his or her skillset and try to identify what may or may not work in a particular dispute.

An example of this arose in an elder law mediation we undertook recently where an 80 plus lady was involved in a family dispute with allegations that one of her children had taken advantage of her to enrich himself. The parties were embroiled in District Court litigation over a jointly owned property of reasonably modest value and the prospect that if not resolved, the dispute would further lessen the net value of the property in dispute and accentuate the divisions in what was already a highly divided family.

During the shuttle discussions it became apparent that the son was prepared to compromise his claim for compensation for work allegedly undertaken on the property, however his mother had reached a hard nosed position and was intent on taking all, despite the fact that this would involve a costly and messy trial with the possibility of no real winner.

Rather than follow the customary steps, a heavy emphasis and lots of time was spent in listening to and validating elderly mum's concerns and developing a rapport which proved invaluable in gently guiding her to what was clearly a sensible and commonsense solution of a  complicated fact situation with various allegations and counter allegations many of which would be difficult to prove.

Whilst the path of the process was not clearly apparent when we set out and evolved as we moved through the dispute, I as the mediator, have no doubt that the armchair chat type approach and heavy investment in rapport and trust was the right one for this dispute and resulted in an outcome where the parties not only saved significant costs, but were able to take up the threads of communication in a manner suggesting at least some prospect however small, of family healing so that the elderly mother could possibly have some chance of finding harmony and peace in her twilight years.