Dispute Resolution and Aging: What Is the Nexus and Where Do We Stand?

Volume: 36 Issue: 3

About the Author:

Erica F. Wood is assistant director of the ABA Commission on Law and Aging. She has worked with the Commission since 1980 on issues concerning adult guardianship, legal services delivery, dispute resolution, health and long-term care, and access to courts.

Published in Experience, Volume 36, Number 3, 2015. © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

(Note: The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 36, Issue 3.)

 

What makes conflict resolution in the context of aging different from any other conflict resolution? You might say that the number of birthdays of the parties should not necessarily affect the kinds of conflicts, the dispute resolution skills needed, or the process of resolution. But actually, there are some key differences. This column will highlight the differences, trace the history as Alternative Dispute Resolution (ADR) and aging have “come of age,” and profile some current activities in the burgeoning field.

Why Is Conflict Resolution Different as Parties Age?

The first difference that stands out is that certain kinds of conflicts become more common as people age. Older persons are more likely to be involved in wrenching family disputes about their assets, their property disposition plans, their living arrangements, and their care. For example, a son and daughter may perceive their father as declining and may engage in a feud over where he lives, who visits him, and who controls—or is to control—his assets. Sometimes these egregious cases develop into guardianship petitions and end up in court.

Or, a father’s apartment in a senior building is densely littered with papers and the detritus of a lifetime, and management wants to evict him because the clutter is a fire hazard. Perhaps he lives in assisted living and has disputes with staff over his care plan and the quality of care provided. Maybe he is gravely ill in a hospital and the adult children don’t see eye to eye on his medical treatment. Or he may have a problem with the treatment he received under Medicare. Under another scenario, he has difficulty walking, trips getting up steps to the local theater, and files an Americans with Disabilities Act (ADA) complaint. With increased age, there is simply a greater probability of encountering these tough intergenerational, inheritance, care or long-term care, disability, health care delivery, and bioethical conflicts.

The second difference lies in the fact that the effects of aging may trigger specific considerations in the dispute resolution process. For example, a mediation space should be easily accessible—easy to find, easy to get into, well lit, with good acoustics, and supportive chairs. A mediation may need to be conducted in a party’s home, a nursing home, or a room in assisted living. Accommodations should include but go beyond those technically required under the ADA. For example, is there a need for shorter mediation sessions or frequent breaks? Can the session be conducted at whatever time of day the person functions best? Can the person be seated so as to best hear the discussion? Can a draft agreement be in large type? Does the older party need or want a “support person” in the room during the mediation?

Third, mediators addressing problems of older parties benefit by certain knowledge and skills. Having at least some background in elder law, or knowledge of where to find the expertise, is helpful. For example, if a mediator does not know that Medicaid regulations can drastically affect the outcome of an agreement on assets, the results may be very different than the parties had bargained for. A familiarity with the basics of the long-term care regulatory setting, or knowing where to find the basics, can forestall creation of an agreement between a facility and resident that erodes the resident’s required rights or services. Additionally, mediators must be able to recognize the signs of elder abuse, neglect, and exploitation and know how to report to adult protective services.

Moreover, having an understanding of, or access to information on, the aging network and community resources can contribute to a wider list of options and a better resolution. A mediator might, for instance, suggest calling in someone from the local agency on aging to describe senior housing opportunities in the area or sources of home help. And mediators could learn to use communication skills that enhance understanding if a person seems confused or distracted, for example, allowing more time and using short direct sentences and paraphrasing. Finally, mediators working with elders must confront societal stereotypes, as well as their own attitudes, about aging and how these perceptions might affect the dispute resolution process.

Fourth, mediations concerning the care and finances of an older person are family mediations. They may frequently involve multi-party disputes. In addition to the older individual, there might be several adult children and perhaps parties from blended families with a long history of troublesome dynamics. Or, the issue might not arise out of a dispute but rather the need for a family to start a difficult discussion on advance care planning. Elder mediators sometimes offer training, advice, or help to facilitate these sensitive talks. In such discussions and mediations, a critical role of the mediator is to ensure that the voice of the elder is heard, that all the relevant parties are included, and that the elder’s rights and need for maximum self-determination are recognized.

Finally, older parties in conflict—especially the “old old”—may exhibit some degree of dementia. Capacity questions are challenging and can strain the fundamental nature of the dispute resolution process, which assumes that parties in conflict can remember the facts at issue, understand the process for resolution, and abide by the decision reached.1

Mediators must be prepared to confront the capacity conundrum. For example, they should not mistake temporary conditions such as medication effects, grief, pain, or depression for dementia, and they should start with a presumption of capacity—and then, if confusion is evident, provide any necessary supports. Even if a person does not have full capacity to brainstorm options and have input into the agreement, the party still may be able to be present and participate to some degree. Mediators might aim to honor the maxim of “no decision about me without me” and empower older individuals to express their values, needs, and preferences. Mediators may need to wrestle with questions of whether a surrogate such as a guardian or agent under an advance directive can be a party in place of, or in addition to, the older person, and how to enhance the older person’s voice as much as possible.

Is There an “Elder Mediation” Field and How Did It Develop?

In the 1980s, a number of lawyers, mediators, and aging and disability advocates collectively had the same light-bulb idea: why not use mediation to address problems common to the aging and disability populations? For example, beginning in 1986, a Washington, D.C.-based Dispute Resolution Coalition on Aging and Disability sought for many years to bridge the gap between the mediation and aging/disability networks. In 1995, AARP sponsored a national conference called “Collaborative Approaches: Disability, Aging and Dispute Resolution.” In 2002, the ABA Commission on Law and Aging initiated a national discussion list on aging, disability, and dispute resolution, still in operation (now co-hosted with the Association for Conflict Resolution). Over time, some mediators increasingly sought to focus their practice around aging issues, and several state court systems developed pilot projects.

Beginning in the 1980s and 1990s, [T]he Center for Social Gerontology (TCSG) pioneered the use of mediation in adult guardianships and, later, in caregiver conflicts, with pilot projects and extensive trainings. In 2006, when the notion of mediation and aging had been around for close to two decades, TCSG convened a mini-summit to examine where it stood and what steps were needed to move forward effectively. Co-director Penny Hommel expressed two challenges. One was “the challenge of under-utilization of mediation” in aging issues: why weren’t more age-related cases surfacing? The second challenge concerned quality assurance: “what type of guidance/leadership is needed to ensure that mediators are adequately prepared to safeguard elders’ autonomy and rights, and that mediation does not unintentionally lead to limiting the rights and voices of older persons?”2 The mini-summit brought about a network of ongoing working groups focused on elder mediation training, education, ethics, and resources.

In 2007, a national symposium on ethical issues for elder mediation was convened at Temple University’s School of Law. Two years later, the Association for Conflict Resolution (ACR) devoted its quarterly publication, ACResolution, to “New Perspectives on Elder Mediation: Evolving Ethics and Best Practices.” The landmark issue opened with an article on a mediator’s ethical responsibility, stating: “Elder mediation creates special ethical issues regarding core mediation values, particularly, impartiality, self-determination, confidentiality, participant safety, and mediator competency. Mediators will often encounter two or more values in tension and be challenged to respond . . . .”3 The publication also profiled Alaska’s court-connected pilot project, a New York court model, and more. In the 2009 special issue, ACR announced the formation of a new ACR Section on Elder Decision-Making and Conflict Resolution. The mission of the Section is “to advance the development, provision, and use of high-quality, facilitated conflict resolution and decision-making services by older persons, their families, public and private service providers, and others.”4

What’s Current with Dispute Resolution and Aging?

The field of dispute resolution and aging/disability continues to grow and change. Several national efforts show its breadth and diversity.

Elder Mediation Training Objectives

If you want to take training in elder mediation, what expectations should you have? If you are planning to teach elder mediation, what should a quality training course cover? That was the focus of the ACR Elder Decision-Making and Conflict Resolution Section’s Training Standards Committee. In 2012, the Committee released a comprehensive and extensively considered package of three sets of training objectives: one for “elder care and elder family decision-making mediation” that also includes objectives for adult guardianship cases; one on “diversity training objectives”; and a final one on “mediation in the long-term care setting.”5 The objectives begin by defining “elder mediation” as “all mediation in which participants address issues that occur as a result of life cycle events, transition, and/or losses often associated with aging and dying.” University of Georgia Professor Eleanor Crosby Lanier highlights the ACR training objectives in her article in Experience, Volume 36, Number 3 on page 23.

Guardianship Mediation

The Center for Social Gerontology led the way in the use of mediation in resolving adult guardianship and caregiver disputes.6 In guardianship mediation, the issue of incapacity itself is not mediated because that is a legal issue for judicial determination, but a mediation might identify options less restrictive than guardianship or discuss who to propose as guardian, where the person will live, and who will provide care. Often, the trigger for a guardianship petition turns out to be sibling rivalry and other family conflicts that can be addressed better in mediation than in court. A growing number of mediators now have sought to include guardianship/caregiver issues in their service and trainings. In addition, several state guardianship codes reference or authorize the use of mediation in guardianship cases.7

Eldercaring Coordination

But what happens when an aggravated guardianship/eldercare conflict has gone beyond the ability of mediation to address? ACR is pioneering a new concept called “eldercaring coordination.” It is based on a currently used model of “parenting coordination” that assists high-conflict parents and children involved in family court actions. A national ACR Eldercaring Coordination Task Force has developed “a dispute resolution option specifically for high-conflict cases involving issues related to the care and needs of elders in order to complement and enhance, not replace, other services such as provision of legal information or legal representation, individual/family therapy, medical, psychological or psychiatric evaluation or mediation.”8 The Guidelines have been approved by the Association for Conflict Resolution. The Task Force is chaired by Linda Fieldstone and Sue Bronson, authors of the article on page 29 of Experience, Volume 36, Number 3, “From Friction to Fireworks to Focus: Eldercaring Coordination Sheds Light in High-Conflict Cases.”

Long-Term Care Ombudsman Program

Other dispute resolution approaches focus on older persons as well. An ombudsman can be an important means of addressing the needs and voices of vulnerable individuals who might not otherwise be heard. Begun in 1972 as a federal demonstration program, the national Long-Term Care Ombudsman Program exists today in all states under the authorization of the Older Americans Act (Title VII).

Each state has an office of the state long-term care ombudsman, and many areas have local ombudsman staff and trained volunteers who advocate for residents in nursing homes, assisted living, and other long-term services and support settings. The ombudsman network nationally has over 8,000 volunteers certified to handle complaints and more than 1,000 paid staff. The program resolves complaints by long-term care residents, educates consumers and providers about resident rights and best practices in care, and advocates for residents’ rights and quality care.9

ADA Mediation

The ADA encourages the use of “alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, factfinding, minitrials, and arbitration” to resolve disputes.10 To carry this out, the Department of Justice has sponsored a mediation program that informally resolves ADA complaints, allowing the complainant and the business or local government named in the complaint to agree on solutions that comply with the ADA. Since its inception, the program has mediated more than 4,000 complaints nationwide.

The ADA mediation program uses professional ADA-trained mediators throughout the country. The program targets complaints in state and local government services (Title II) and in public accommodations (Title III). For example, a complaint might charge that a store has inaccessible parking, that a restaurant refuses entry to a person with a service animal, or that a city’s public hearings are held in an inaccessible location.11

Other Conflict Resolution Avenues

Conflicts often arise in settings involving large numbers of people living in close proximity, such as condominiums, senior residences, or retirement communities. Now older people who want to “age at home” are organizing “villages”—membership-driven, grass-roots organizations to coordinate access to services.12 In these settings, conflict resolution approaches may contribute to smooth operation and help residents sort out differences.

There are also a growing number ofnother dispute resolution applications relevant to conflicts common for the older population. For example, a little-known Medicare program uses mediation for certain beneficiary complaints about issues involving the clinical quality of care (as opposed to coverage), offering “an opportunity for the beneficiary and his or her doctor or hospital to tell their story, respond to each other, and resolve the concerns about the way the beneficiary was treated.”13 And there have been discussions over time about using mediative approaches to resolve bioethical dilemmas—including end of life issues—that often are characterized by high stress, difficult diagnoses and family dynamics, hurried communications, and diminished patient capacity. Discussions in hospital ethics committees could incorporate a mediation framework or members could be trained in conflict resolution skills.14

You and Your Practice Can Benefit

If this column’s “bird’s-eye” overview of dispute resolution and aging catches your attention, learn more in the other articles in Experience, Volume 36, Number 3. Then get involved! There are opportunities for training, for volunteering, and for enhancing your practice by building relationships with skilled elder mediators.

 

1 Erica F. Wood, Dispute Resolution and Dementia: Seeking Solutions, 35 Ga. L. Rev. 785 (2001).

2 Press Release, TCSG, National Elder Mediation Network Formed at Mini-Summit (Feb. 23, 2006), available at http://www.tcsg.org/empressrelease.pdf.

3 Barbara Foxman, Kathryn Mariani & Michele Mathes, A Mediator’s Ethical Responsibility in Elder Mediation: What Is at Stake?, ACResolution (Ass’n for Conflict Resolution), Summer 2009, 3.

4 See About the Section on Elder Decision-Making and Conflict Resolution, ACR Elder Decision-Making Sec., http://acreldersection.weebly.com/about.html.

5 Documents from the Training Standards Committee, ACR Elder Decision-Making Sec., http://acreldersection.weebly.com/documents.html.

6 See The Center for Soc. Gerontology, http://www.tcsg.org; see also Susan Hartman, TCSG, Adult Guardianship Mediation Manual (rev. 2002) (1996).

7 See, e.g., N.C. Gen. Stat. §§ 7A-38.3B, 35A-1108.

8 Ass’n for Conflict Resolution, Guidelines for Eldercaring Coordination 29 (2014), available at http://acreldersection.weebly.com/uploads/3/0/1/0/30102619/acr_guidelines_for_eldercaring_coordination_10-1-14tf.pdf.

9 See About Ombudsmen, Nat’l Long-Term Care Ombudsman Resource Center, http://www.ltcombudsman.org/about-ombudsmen.

10 42 U.S.C. § 12212.

11 Department of Justice ADA Responsibilities: ADA Mediation Program, ADA.gov, http://www.ada.gov/mediate.htm.

12 See Village to Village Network, http://vtvnetwork.org.

13 Sean M. Weiss, Medicare Beneficiary Complaints and Its Impact on You, BC Advantage, Aug. 2007, available at http://www.billing-coding.com/detail_article-editorial.cfm?articleID=1645; see also Ctrs. for Medicare & Medicaid Servs., Mediation: A New Option for Medicare Beneficiaries to Resolve Complaints Filed through a QIO, available at www.medicareadvocacy.org/Projects/QIOConference/SubstantiveInfo/MediationBackground.pdf.

14 See Nancy N. Dubler & Leonard J. Marcus, Mediating Bioethical Disputes: A Practical Guide (1994). ■

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