How Mediation Helps Settle Assisted Living Disputes

How Mediation Helps Settle Assisted Living Disputes

Conflict in any location where human beings congregate is inevitable. We are all evolutionarily programmed to defend ourselves when threatened, and to protect ourselves if we believe we are being wronged, even if the perceived attack is emotional rather than physical. Seniors are no exception.

When individuals who have lived independently in their own homes for many years are thrust together with caregivers in situations over which they have only partial control, conflict may boil up. Traditionally, administrators of assisted living facilities and nursing homes have tried to work out conflicts by talking and meeting with family or other concerned parties as well as the residents themselves. Sometimes this works. At other times, however, outside help may be necessary to resolve the conflict.

Dispute resolution is a process through which conflict is resolved by consulting a neutral person to assist both parties. Dispute resolution is strongly encouraged by the courts because it is practical, because it is far cheaper than litigation and trial, and because it is successful in resolving conflict about 80% of the time, regardless of the nature of the dispute. However, in health care settings and senior care facilities, using a neutral person to assist in conflict management is rare if not nonexistent. Although dispute resolution is a familiar concept to lawyers, nurses and caregivers may only be familiar with using a neutral person to mediate a labor dispute, divorce or other court-related cases. But mediation has far broader applications than that, and it is a very useful technique to manage conflict in long-term care settings.

What’s the Difference Between Arbitration and Mediation?

Mediation is a voluntary process in which people in a dispute meet with a neutral mediator to work out conflict. The parties involved make their own decision as to how the situation will turn out. It differs from arbitration, which often occurs at the end of litigation. In arbitration, a judge or arbitrator hears evidence, takes witness testimony, and rules on the matter in dispute. The parties in arbitration relinquish control of the outcome of the dispute when they put it in the arbitrator’s hands. By contrast, mediation allows the parties themselves to determine how a conflict will end or whether it will end. Rather, the mediator guides the discussion, gives objective feedback, prevents the conflict from escalating, keeps order, and encourages each side to consider alternatives to the ongoing dispute. At the end, if the parties work things out, the mediator may write up a summary of the agreement for the parties to keep and to which they can refer.

The major difference between the two kinds of proceedings is that in mediation, the parties themselves make the decisions, rather than having someone else decide for them. Mediation is informal, voluntary and no court is involved. Arbitration is a formal process, it is usually not voluntary, and it often takes the place of a trial in court.

Why Choose Mediation?

Mediation requires a mediator or two with training and qualification to address the problem in a professional way. Familiarity with senior care facilities and how they are run provides a very helpful background for mediation in a long-term care setting. The parties to the conflict usually split the cost of the mediation. Many mediators are lawyers, and the fees they charge are similar to attorneys’ fees. Mediators will come to the care facility to conduct the mediation. The only prerequisite is that all parties involved must be willing to participate. The background and skill of the mediator can do much to facilitate resolving the conflict. Parties to conflict often have difficulty being objective about possible solutions, as anger, resentment, fear and other emotions may interfere with their objectivity. This is where the value of using a neutral person outside of the conflict becomes clear. Approaching the problem objectively can diffuse emotion and help get to the end of the conflict or at least make for a workable agreement to reduce the damage it has inflicted.

Can’t I Just Handle the Conflicts Myself?

You can, but it is necessary to have some mediation training to be effective, and you would need to be neutral to the conflict. If, for example, you are employed at the nursing home where there is conflict, you will never be perceived as neutral by residents who are involved in the conflict. Residents may feel “taken advantage of” by the facility, or dissatisfied with their care. Whatever the complaint, they are unlikely to feel they are being treated fairly if—from their point of view—they have already complained about the source of their dissatisfaction, gotten nowhere, and yet another facility employee is now covering the same ground with them. Labor disputes are notorious sources of conflict in which trying to manage it on your own can prove futile. Labor strikes are an obvious result of unresolved conflict. Mediation is best at the early stages of conflict to avoid worsening confrontation later.

What Kinds of Conflicts are Suited to Mediation?

The kinds of conflict suitable for mediation can be those which pose a risk of escalating to a lawsuit, or police involvement, or just bad publicity. For example, perhaps an assisted living facility’s response to a particular incident has outraged or upset family members, and apologizing has not made it go away. Perhaps there is disagreement about how the incident happened, or what the root cause really is. Sometimes it comes down to one person’s word against another’s and the fight continues because the facility staff does not want to take sides. Sometimes there is a problem between a caregiver whom the facility values and a resident whose family gets upset and makes threats. In all of these instances, the use of mediation can be very helpful.

What Happens During Mediation?

In my own practice, I am part of a two-mediator team, and my co-mediator is a clinical psychologist. In the mediations we have conducted, neither the care facility employees nor the residents or their family members had attended a mediation before. One or both parties may bring their attorneys, but it is not necessary. Usually resolution involves a bargain whereby the facility gives of something of value to the resident to resolve the dispute. In the mediations I have conducted with my partner, a remodel, new carpet, reduced rent, moving to a different apartment, and more “care points” without charge are examples of some of the bargaining chips facilities have offered to disgruntled residents to resolve conflicts. In exchange, the residents have released the facility from liability, dropped pending charges, or otherwise agreed to refrain from taking some legal action against the facility. Setting the agreement down in writing, which the mediator does after a conflict is worked out, preserves the agreement for everyone to understand and rely upon, and all parties are asked to sign the agreement.

Can I Enforce a Settlement Agreement Based on Mediation?

The enforceability of a settlement agreement under these mediation circumstances has not yet been tested in my practice. However, a settlement agreement becomes a written contract upon being signed by both parties, which presumably would be as enforceable as any other written contract. Fortunately, I have found that once the intense emotion is taken out of the conflict by reaching agreements, the parties seem to be able to move on, and I have not heard yet of any repeated care facility conflict over issues resolved in mediation. Keep in mind that all of this information is anecdotal at present, as the use of mediation in care facilities is still relatively new, and there is insufficient data available to qualify for researched conclusions just yet. However, I believe mediation is a workable, innovative approach to keeping the peace in care facilities when things go wrong, and I encourage more long-term care administrators to employ it the next time conflict arises which can’t be resolved independently.

   

References:
1. Bertschler, Patricia, Patricia Ruflin, "Elder Mediation: New Role in Healthcare," September 20, 2004, http://Mediate.com/.
2. Dugan, John and Arline Kardasis, "Elder Decisions in Elder Mediation," October, 2004, http://Mediate.com/.
3. Grey, Robert, "Mediation of Guardianship and Elder Law Cases," First published in “Elder Law Attorney” the official publication of the New York State Bar Association Elder Law Section in the Fall 2000 issue (Vol. 10, No. 4) under the title “All We Are Saying Is Give Peace A Chance”. Article was modified slightly for publication on http://Mediate.com/.
4. Larsen, Rikk and Blair Trippe, "Tough Elder Decisions: The Mediation Option," May, 2004, http://Mediate.com/.
5. Mitchell, Janet, "Eldercare Mediation: A New Way to Make Decisions Regarding Aging Parents," September, 2003, http://Mediate.com/.
6. Rice, Karen, "Eldercare Mediation," April, 2005, http://Mediate.com/.


Carolyn L. Rosenblatt, Attorney at Law, R.N., is a founder of AgingParents.com and HelpWithElders.com. She is a consultant and mediator, teaming with a psychologist, providing direct services and informational products for those caring for aging loved ones. She can be reached at carolyn@agingparents.com or at (866) 962-4464.


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