Resolving Conflict for the
Aged and Disabled

By 2030 there will be about 70 million older persons age 65 or older in the United States representing 20% of the population. The number of older people will have doubled since 1998. About one in five non-institutionalized Americans has some kind of disability and the likelihood of having a disability increases with age.

Federal legislation has recognized the need to protect the elderly and the disabled by the passage of age discrimination laws, government benefit programs, and disability discrimination laws. The Older Americans Act and the Americans with Disabilities Act (ADA) are two well-known examples.

The elderly and disabled populations become involved in the same types of disputes as the rest of the population, but they also often face unique and challenging problems. Over the past decade there has been tremendous growth in "alternative dispute resolution," or ADR, as a way of resolving disputes without litigation. Alternative dispute resolution can be just about anything short of a formal trial to resolve a dispute between two or more parties. Mediation and Arbitration are the two most well known forms of ADR. Mediation is an informal voluntary process whereby the parties to a dispute meet with a neutral third party to facilitate discussion about the issues and help the parties come to a mutually satisfactory resolution of their dispute. In mediation the parties are the decision makers. Arbitration, on the other hand, is like an informal trial where the parties agree to submit all of their evidence to the arbitrator and have him or her render a decision. If the parties agree, the arbitrator's decision may be binding upon them.

Of all the forms of ADR it is my belief that mediation holds the most hope for reaching a mutually satisfactory resolution to any dispute. It is quicker, less expensive, and far less traumatic than arbitration or a trial. For anyone, enduring the process of litigation and trial can be confusing, frustrating, and extremely traumatic. In my experience as a trial judge it was clear to me that the result reached in trial was seldom a satisfactory resolution for either party to a dispute. In mediation, on the other hand, the resolution reached more often meets the needs of both parties. Any resolution reached in mediation is usually longer lasting because the parties themselves are the ones who actually resolve the dispute and the reasons for the results are more clearly understood by both sides.

Mediation is particularly helpful in situations where the parties will continue having some form of personal or business relationship after a resolution of the dispute. There is no more certain way to assure the end of a personal or business relationship than to engage the other party in litigation. In mediation the mediator can help the parties clearly communicate with each other and help them reach a resolution to their dispute which satisfies each party's interest, thereby making it easier to continue their business or personal relationship because nobody is the winner or the loser.

Whereas in court the judge or the jury is limited to answering the specific legal question posed, in mediation the mediator is often able to get to the real reasons behind the dispute and get the parties to resolve it in a creative way that may include other "issues" not recognized in the beginning, but which may have been the real reason the dispute has never been resolved.

The types of disputes in which older or disabled people often find themselves involved and which are well suited to resolution through mediation include:

• Intergenerational disputes: Disputes over estate planning, health and long term care, and grandparent custody or visitation of grandchildren.
• Guardianship conflicts, which often include dysfunctional family dynamics.
• Disputes over treatment or things that happen in residences such as assisted living facilities, nursing homes, continuing care retirement communities, and senior housing complexes.
• Health care conflicts including bioethical disputes over end-of-life decision-making and other issues arising in both acute and long term care settings.
• Managed care conflicts over denials, reduction or termination of services, and issues of enrollment or disenrollment, quality of care and liability for changes.
• Disputes over discriminatory treatment because of disability or old age possibly in violation of the Federal Americans with Disabilities Act or state antidiscrimination laws.
• Educational issues including special education or accommodations of special needs and/or services because of disabilities.
• Federal, state or local policy issues including public benefits, accommodations, health and long term care.

Consider these real-life situations where mediation would be a useful tool to help resolve the issues:

"A nursing home accuses a resident with Alzheimer's Disease of attacking staff members and other residents. The nursing home notifies the resident and his family members that this behavior will not be tolerated and that he must leave the facility within 14 days. The resident's son and daughter respond complaining that the nursing facility has failed to properly administer and monitor their father's medication, ignored his personal hygiene and urinary problems, and they have lost his dentures. The family has no alternative placement options for their father."

"An elderly couple live in an apartment in Phoenix, Arizona. The husband is 80 years old and the wife is 82. One year ago the husband fell and broke his hip and now has to use a walker to get around. He is starting to forget things and sometimes talks incoherently. His wife of 40 years takes care of all of their daily needs but her eyesight is starting to fail. Their son, who also lives in Phoenix, comes to them and tells his parents that he is concerned about their physical well-being. He tells them that they appear to be spending money unwisely and not paying bills and he believes that one or both of them should be in an assisted living facility. He advises them that he has filed a petition with the court asking to be appointed their guardian and conservator. The wife/mother objects, stating she is in good health and capable of taking care of both of their needs and, in any event, if anyone should be appointed guardian for her husband and conservator of their estate it should be her. Another son who lives in Chicago, upon being advised of his brother's actions, objects saying his brother is not competent to make financial decisions for his parents, that he is a financial planner by trade and that his parents should move to Chicago where he can care for them and that he should be appointed guardian/conservator."

"An elderly man with a hearing impairment has registered for continuing adult education classes at a local community college. Upon requesting an amplified hearing device be provided to him to assist him in hearing lectures, the school declines the request saying it would cost too much."

"A man confined to a wheelchair attends a concert at the Phoenix Coliseum. Halfway through the concert the man needs to use the restroom. One of the ushers tells him that there are only two restrooms designated for the handicapped, one in the basement and one on the main floor, but the one in the basement is only accessible by a long steep ramp and there are no free ushers available to get him back up the ramp after using the facility. In great personal distress for need of using the restroom, the man makes his way to the restroom on the opposite side of the Coliseum which has a sign designating it for handicapped use. Barely able to get his wheelchair through the door he finds that the stall is not big enough to get his wheelchair into and turn around so that he can lift himself onto the toilet. With great embarrassment, he soils himself. He files a complaint against the Coliseum and has contacted an attorney to file suit under the ADA for failure to provide accommodations to the handicapped in a public facility and for damages for his emotional distress and embarrassment. He wants to make sure this does not happen to him or to any other handicapped or disabled person again.

In each of these situations a lawsuit could be and often is filed at a moment of high emotion. Litigation is like a long train ride. Once the "litigation train" begins to move down the track the plaintiff becomes a passenger losing all control over the outcome and often the route it takes. It is well known that our court system is over burdened with too many cases and not enough judges and courtrooms. The legal process is confusing, and inordinate delays are common. The cost of litigation can be expensive to persons who earn a good living and can be prohibitive to older or disabled persons who live on a modest or fixed income. To the elderly and disabled, courthouse locations, transportation, trial or hearing schedules, inadequate accessibility to facilities and lack of familiarity with court procedures can become very intimidating and seemingly insurmountable problems.

Mediation is particularly well suited to assist the elderly and disabled resolve disputes in a faster, less expensive and less traumatic way than through litigation. Most disputes are the result of lack of communication, miscommunication or communication that has been misunderstood. Mediation allows the parties, facilitated by a neutral third-party mediator, to talk about each party's position and interest, and to reach a mutually satisfactory, long lasting solution that hopefully preserves or restores the relationship between the parties if appropriate.

In 1988, the ABA Commission, The Coming of Age, recognized the potential benefit of dispute resolution for the elderly and suggested studies be done to explore its usefulness. In 1990, the U.S. Congress passed laws that encouraged alternatives to litigation to resolve disputes from the disabled under the ADA. In 1995, the Dispute Resolution Coalition on Aging and Disabilities joined with AARP to sponsor a national conference called "Collaborative Approaches: Disability, Aging and Dispute Resolution." In 1998, The American Bar Association Commission on Legal Problems of the Elderly received funding to promote the integration of conflict resolution for the aged and disabled through state, local and regional programs. As the result of these efforts, several large demonstration and pilot ADR projects have been funded and put into operation in various states in the U.S. to test the usefulness of ADR in this arena. Although these projects have all confirmed that ADR is a useful tool in resolving disputes for the aged and disabled, the establishment of similar large scale programs into all the other states has been slow to spread.

The following are some of the programs available in Arizona to help the aged and disabled: the Area Agency on Aging has established an Ombudsman program to help residents of long term care facilities who experience problems to resolve their dispute. The Maricopa County Superior Court has established the Probate Mediation Program where a Probate judge refers cases that appear suitable for dispute resolution to be mediated by one attorney and one non-attorney mediator, without cost to the litigants. The Arizona Attorney General's office conducts mediations in ADA cases in the investigation stage. Cases involving appeals from a denial of benefits under AHCCCS and the denial of services or accommodations under Special Education laws are frequently referred to mediation. In addition, private paid mediators can be retained by the parties to any dispute to help them reach a resolution without litigation.

It is my perception that people in general, and particularly the aged and disabled, are not well informed about the existence and benefits of alternative dispute resolution. As more and more people experience it, its popularity is growing. Please help me spread the word.