Resolving High-Conflict Eldercare Disputes

Eldercaring Coordination: A Needed Dispute Resolution Option

Using eldercaring coordination to reduce and manage family conflict.

Sarah J. Gross, M.Ed., J.D., LL.M.

Introduction to Family Conflict in Eldercare

The aging of a family member is an inevitable process, and families hope that their aging parent or grandparent will gracefully step into their elder years. For many families, however, this process is not so graceful, and family members are faced with making difficult decisions. While families want what is best for the elder, family members may disagree over what the “best” entails and conflict erupts over who will care for, have access to, and make decisions for the elder. As a result, adult siblings may find themselves in court arguing over decisions for an elder parent. [1]

Elder mediation has been a growing and increasingly common avenue for resolving elder disputes outside of the courtroom. [2 ] In most cases, (cases involving mild to moderate conflict), mediation is successful in getting parties to set aside their differences and focus on solutions for the elder. In high-conflict cases, however, where family members demonstrate an unwillingness to cooperate even with the intervention of a mediator, a different approach is needed to address the underlying conflict and encourage families to focus their efforts on the care and wellbeing of the elder.

Eldercaring coordination has developed as an alternative dispute resolution (ADR) option for high-conflict elder disputes. The goal of eldercaring coordination is to complement other services such as legal representation and mediation, and to “help manage high-conflict family dynamics so that the elder, family and stakeholders can address their non-legal issues independently from the court.” [3] Eldercaring coordination recognizes the incidence of high-conflict family dynamics in disputes involving elders and provides an ADR option for those instances where mediation fails.

Dispute Resolution in Elder Care: Elder Mediation-Benefits

Mediation has developed as a preferred method for resolving disputes involving the care and needs of elders. Elder mediation is effective in handling high family tensions and emotions because the mediation forum offers the opportunity for the elder and other concerned parties to come to a mutual understanding of each person’s values and concerns. [4] It preserves the voice and participation of the elder, and provides a constructive and secure environment that encourages the participation of all parties to discuss issues pertaining to the elder’s care, including issues arising in the context of a conservatorship petition. [5]

The goal of elder mediation is to provide families access to resources that are not available in court, where the mediator has knowledge of these resources to serve the needs of elders within the relevant community. [6]  In encouraging this type of communication, the facilitative approach of elder mediation helps to preserve family relationships and build connections to community resources that families may otherwise be unaware of.

These benefits to mediation make it a viable and important ADR option for disputes involving families and elders, and thus it is an appropriate intervention in the majority of cases. There are situations, however, where the mediator may be limited in his or her ability to address the high-conflict dynamics that can arise in an elder dispute.

Elder Mediation − Limitations

Cases involving high-conflict family dynamics often include one or more conditions which indicate that mediation is not an appropriate method to resolve the dispute and, if used, may exacerbate conflict and result in impasse. For example, some cases may involve an imbalance of power if the elder is unrepresented or is not appointed counsel. A party who is unwilling or unable to participate also frustrates the intent of mediation and indicates that the mediation may be unproductive. If a contentious family member demonstrates an aversion to engaging in good-faith compromise and the mediation proceeds, that family member may misuse the mediation as a forum to vent, escalate conflict, and restate absolute positions. This setting can negatively impact the elder, making him or her feel unheard or unsafe. [7]

In situations of high conflict, when family members are not amenable to working cooperatively and cannot focus on the important issues at hand (an elder parent’s care and well­being), families may require a different dispute resolution process that goes beyond what elder mediation can provide.

Eldercaring Coordination

Eldercaring coordination is the missing link between elder mediation and the court that serves to manage family conflict, facilitate productive communication, and assist in the implementation of an elder care plan. Elder mediation and eldercaring coordination are both processes aimed at helping families to make informed decisions, but these processes are distinct from one another in the approach to managing high-conflict family dynamics.

The eldercaring coordination process involves eldercaring coordinators (ECs), impartial third persons who assist the parties in a high-conflict dispute to resolve their non-legal issues. An EC is appointed by the court for a term of up to two years to assist a family in making decisions related to the care of an elder. ECs are required to complete training and to have specific qualifications to ensure adequate knowledge and experience to effectively assist families in decision-making under high-conflict conditions. [8]

The work of ECs complements and enhances elder mediation to help families work more productively in resolving high-conflict disputes, as the EC often steps in to assist families after mediation to address subsequent, repeated conflicts. Family conflict may result in a mediation impasse when family members are enmeshed in chronic disputes that take the focus away from the elder and detract from the goal of resolving the dispute. An EC can be an effective intervention when mediation has failed on account of intractable family conflict, or when mediation is likely to fail because of high-conflict indicators such as controlling behavior toward the elder; multiple non-substantive motions to the court; and sibling entrenchment. ECs may use some of the same strategies and interventions that an elder mediator employs to help families work through conflict and are further trained to delve into and address high-conflict dynamics; identify issues of accord and conflict; and assist families on methods of resolving conflicts in order to make better decisions regarding elder care. [9]

When high-conflict dynamics are addressed within the setting of eldercaring coordination in the event that mediation fails, families can begin to separate from conflict narratives and focus their energies on the wellbeing of the elder. The resulting benefits include reduced court time and interventions; greater use of community resources; and the needs of families and elders being addressed earlier so that attorneys can more effectively assist clients on legal issues.

Eldercaring Coordination in California

There are several factors that highlight the need for elder­caring coordination in California: 1) the increasing aging population; 2) lack of aggregate data on elder case filings; and 3) the prevalence of elder abuse.

1) Increasing Aging Population

According to the California Department of Aging (CDA) Population Demographics for 2018, an estimated 8,221,985 California residents will be 60 years old or older. In Orange County, California, the CDA projects a 100 percent to 150 percent increase in the aging population. This increase correlates to increased care needs and use of community and court services by elders. Research also indicates that the aging population has a significant impact on court services.

In 2012, a study was conducted on the impact of the increasing elderly population on court services in Orange County, California. [10] The study sought to determine the projected increase in caseload relative to the elderly population; whether court programs exist to address the needs of elders; and what court programs Orange County Superior Court (OCSC) can implement to further meet elders’ needs. The study resulted in several findings. First, data indicated an increase in elder abuse cases as well as in conservatorship filings. Second, OCSC does provide services to elders, including physical accommodations and referrals to mediation through Family Court Services, but there is still a need for a specialized court or process to address elder needs.

The eldercaring coordination process serves as a resource to the court and others involved (elder mediator, attorney, therapist) because the primary focus is reducing and managing family conflict on a consistent basis until the family is able to make supported, issue-focused decisions (rather than conflict-focused) and channel their energies into supporting the elder. When interpersonal dynamics are addressed through the eldercaring coordination process, the family and stakeholders are better able to work with an elder mediator, geriatric care manager, financial experts, conservator, elder law attorney, and/or physicians. The EC helps families navigate the difficult transitions of eldercare and prevent conflicts from interfering with other processes such as mediation and court proceedings. The EC is thus a resource for the legal system, allowing attorneys and the court to focus on legal issues without the interference of family conflict.

2) Lack of Data

There is a general lack of aggregate data in California on conservatorships and other elder disputes. Most cases involving elders are characterized as “probate” cases and are filed and heard in the Probate Division. There is a push for greater oversight of conservatorship proceedings which is compounded by the lack of data.

The introduction of a pilot project in California courts, where data is collected and assessed and improvements are implemented, will provide the data on conservatorships and elder cases and oversight of the California conservatorship system that has been lacking. The Eldercaring Coordination Pilot Project includes assessment tools to gauge the success of the program and its effect on the probate court. Implementing the pilot project in California courts will provide an opportunity to not only evaluate the efficacy of eldercaring coordination as an ADR (alternative dispute resolution) process, but also to provide a level of oversight in conservatorship proceedings and contribute to data collection.

3) Elder Abuse

Elder abuse cases continue to be filed as separate cases in criminal and family courts, and allegations of elder abuse arise in conservatorship proceedings. At the same time, many elder abuse cases in California are not litigated due to deficient investigations, challenges posed by an elder’s incapacity, and inadequate legal remedies, among other factors. Identification of elder abuse and safety issues is often a challenge, particularly for those without the knowledge and training to identify and report elder abuse.

Eldercaring coordination helps in the way of identifying and reporting allegations of abuse, neglect, exploitation, and safety concerns. ECs are trained to screen for elder abuse, neglect, and exploitation, as well as family violence, and to follow appropriate reporting procedures and courses of action when safety parameters are needed. Research on ECs in current pilot sites already indicates that risks are addressed and abuse is reported when appropriate; that safety issues are addressed; and that ECs make appropriate referrals. The duration of eldercaring coordination, combined with the ECs’ training, makes it ripe for identifying and reporting allegations of abuse. An EC who works with a family for a two-year term and builds relationships is well-positioned to identify risks, to prevent abuse, neglect, and exploitation, address existing safety concerns, and monitor safety of the elder.

Conclusion

When mediation reaches an impasse in an elder dispute, the default option is to return to court at the risk of ensuing litigation. With eldercaring coordination, the parties have an alternative process at their disposal. Eldercaring coordination addresses the need for a dispute resolution option for high-conflict cases regarding an elder’s needs that complements and enhances existing services. Eldercaring coordination can provide significant support in conservatorship cases and other elder disputes involving high-conflict family dynamics. Its development as an alternative dispute resolution process demonstrates progress in reducing conflict, increasing court efficiency, and addressing safety concerns for elders, with continued progress expected as the process expands in use.

Orange County Superior Court (Orange County, California) is planning to launch its eldercaring coordination pilot site in Spring 2019. Qualified professionals are being trained as ECs, and the legal and dispute resolution community is being educated about the process. Trainings in family mediation (November 2018), elder care mediation (January 2019), and eldercaring coordination (February 2019) are scheduled as part of the eldercaring coordination Orange County initiative.

Please contact the author, Sarah J. Gross, for more information on the Orange County program and efforts to expand the program state-wide throughout California.

1. Fieldstone & Bronson, Eldercaring Coordination in Your Community or Your Law Practice: New Approaches to Dealing With High-Conflict Families, 14 NAELA J. l, 2 (Spring 2018).

2. Erica Wood, Dispute Resolution and Aging: What Is the Nexus and Where Do We Stand?, 36 BIFOCAL 73, 75 (2015).

3. Fieldstone & Bronson, From Friction to Fireworks to Focus: Eldercaring Coordination Sheds Light in High-Conflict Cases 24 Experience (2015).

4. Mary F. Radford, Advantages and Disadvantages of Mediation in Probate, Trust, and Guardianship Matters, 1 PEPP. DISP. RESOL. L. J. 241, 243 (2001).

5. Jennifer L. Wright, Making Mediation Work in Guardianship Proceeding: Protecting and Enhancing the Voice, Rights, and Well- Being of Elders 8 J. INT’L AGING L. & POL’Y 89, 109 (2015).

6. Radford at 243.

7. Wood, Erica, Recharging Adult Guardianship Reform: Six Current Paths Forward,” 1 Journal of Aging, Longevity, Law, and Policy 8 (2016).  

8. See ACR Guidelines for Eldercaring Coordination (2014).

9. Fieldstone & Bronson, Eldercaring Coordination

10. Vicky Brizuela The Aging Population of Orange County, California and its Impact on Court Services, National Center For State Courts 1 (2012).  

About the Author:

Sarah J. Gross, M.Ed., J.D., LL.M. is an attorney licensed in the state of California whose practice focuses on elder law and elder dispute resolution.

She works with the ACR Elder Justice Initiative on Eldercaring Coordination, an initiative dedicated to developing a dispute resolution option for high-conflict cases involving the care and needs of elders.

Ms. Gross spearheaded the development of a pilot program in eldercaring coordination in Orange County, California courts. She currently serves as pilot site administrator. She continues to advocate for court-connected ADR programs as a means of serving the increasing aging population in the United States, and addressing the needs of elders and their families.

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