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. [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).]
Elder mediation has been a growing and increasingly common avenue for resolving elder disputes outside of the courtroom. [Wood, Dispute Resolution and Aging: What Is the Nexus and Where Do We Stand?, 36 Bifocal 73, 75 (2015).] 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.” [Fieldstone & Bronson, From Friction to Fireworks to Focus: Eldercaring Coordination Sheds Light in High-Conflict Cases 24 experience (2015).] 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.
What is ADR in Elder Law?
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 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. [Radford, Advantages and Disadvantages of Mediation in Probate, Trust, and Guardianship Matters, 1 Pepp. Disp. Resol. L. J. 241, 243 (2001).] 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. [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)]
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. [Radford at 243]. 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.
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. [Wood, Recharging Adult Guardianship Reform: Six Current Paths Forward, 1 Journal of Aging, Longevity, Law, and Policy 8 (2016)]
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 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. [ACR Guidelines for Eldercaring Coordination (2014).
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 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. [Fieldstone & Bronson]
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 are addressed earlier so that attorneys can more effectively assist clients on legal issues.
When mediation reaches 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 ADR 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.
Fostering the next generation of practitioners and theorists in the field of conflict resolution is critical to ensuring that the important work of peacebuilding continues. Much of my career has...By David Smith