Marquette Elder's AdvisorVolume 2Issue 3 Winter Article 11

Promises and Problems in alternative DisputeResolution for the ElderlyKevin GibsonMarquette University

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Repository CitationGibson, Kevin (2001) "Promises and Problems in alternative Dispute Resolution for the Elderly," Marquette Elder's Advisor: Vol. 2: Iss.3, Article 11.Available at: http://scholarship.law.marquette.edu/elders/vol2/iss3/11

Promises and Problems inAlternative Dispute Resolutionfor the Elderly

Is there a place for mediation a

arbitration in elder law? These

other alternative dispute resolut

methods may save money, stres,

heartache for seniors involved i

disputes concerning care, placer

guardianship, and estate matter

By Kevin Gibson

Could anything show a more shameful lack

than to have so little justice in oneself that

get it from others, who thus become mas

judges over one?

ndividuals are faced with significain time, money, and emotional string a case to court. Alternative dislution (ADR) has been widely hsolution for a wide range of conf

international border disputes to schoolyRecently, ADR has been advocated fc

Kevin Gibson is an experienced mediator arProfessor of Philosophy at Marquette UniveMilwaukee, Wisconsin, specializing in appli

nd

and

tion

s, and

n

nent,

involving the elderly'. Mediation has been singledout as a desirable dispute resolution process incases of out-of-home placement, family caregiving,guardianship, and inheritance.' Here, I willdescribe some of the main forms of ADR, notesome benefits it may bring, and then show prob-lems that individuals and attorneys may encounterin dealing with ADR. Finally, I will suggest someguidelines for appropriate and inappropriate appli-cations of ADR.

What Is ADR?S. ADR is a term that encompasses a broad spectrum

of practices aimed at managing conflict. Severaldifferent approaches can be found within this spec-trum. They are "alternative" in that they avoid theformal mechanisms of litigation and courts for res-

of culture olution of civil disputes. The central common fea-

one must ture is that all ADR processes are voluntary andsters and therefore, all parties must assent to them. In addi-

tion, all ADR practices introduce a third party intothe resolution procedure. The particular form and

-PLATO 1 scope of ADR are chosen by the parties themselves.They may decide on the degree of privacy involved,

ant outlays and the amount of control they have over theain in tak- process and outcome. Broadly speaking, ADRspute reso- forms a continuum from processes that mimic for-ailed as a mal court proceedings where a judgment is handedficts, from down from a third party, to those where the princi-,ard spats. pals craft their own solutions, as in mediation.'r disputes Some contracts now mandate ADR prior to lit-

................................. igation and courts also may mandate it. However,

nd Assistant ADR does not supplant traditional litigation' andrsity in judicial adjudication. Instead, it is an ancillaryed ethics, means of resolving disputes.7

ARTICLE Promises and Problems in Alternative Dispute Resolution for the Elderly 83

ArbitrationAn arbitrator is a third party who will render adecision or make an award. The arbitrator is mutu-ally and voluntarily accepted by the parties, whoagree to be bound by his or her ruling in the case.Arbitrators can be anyone the parties agree to.Sometimes it may be beneficial for the parties toemploy a nonlawyer who has expertise in a sub-stantive area, such as a social worker in cases oflong-term care plans. Often though, retired judgesor lawyers will be chosen because of their experi-ence in assessing the merits of both sides of anissue.

While retaining the litigation-like aspect of athird party imposing a decision, arbitration offersgreater flexibility than litigation. The arbitrator isusually not bound by legal rules of evidence or pro-cedure, and the parties themselves can agree to theprocedures they will use regarding discovery, pre-sentation of evidence, resolution of motions, andother matters. Yet, arbitration is quasi-judicial, andparties may have legal representatives make theircase or assist them in presenting it.

A variant of arbitration, known for its use inprofessional sports negotiations, is called "finaloffer" or "last best offer" arbitration. Here, theparties can make several rounds of offers. If theyfail to reach agreement, they then each present a"last best offer" to the arbitrator who choosesbetween them.

There are also a number of hybrid processes.Non-binding arbitration, for example, allows theparties to find out what sort of award might bemade by a third party. They then can choose toaccept an arbitrated settlement as presented, con-tinue negotiating, or move to litigation. Med-arbcombines mediation and arbitration in sequence.That is, if mediation fails to reach complete settle-ment, the mediator schedules a separate meetingand rules on those issues as a binding arbitrator.Neutral fact-finding is an informal process wherean individual selected by the courts is asked tomake a report. This can be a voluntary processadvanced by the parties, or may be initiated by thecourts as described under Rule 706 of the FederalRules of Evidence. A variant on neutral fact-find-ing is early neutral evaluation, a process in whichthe courts appoint an evaluator who meets withboth sides and ascertains areas of agreement. Theevaluator gives both sides candid assessments ofthe strengths and weaknesses of their case, the pos-

sible range of liability, and suggestions as to howthe parties might expedite settlement.' A mini-trialmimics formal court proceedings and is held beforea neutral decision-maker who is often a retiredjudge, but usually without a jury. Similar to a mini-trial, a summary jury trial is not really a trial, butrather a structured settlement process. At pretrialconference, a judge may encourage or require thatparties to a pending case hold one." The summaryjury trial is usually held after discovery is complete,when both parties are ready to proceed to trail. Theprocess involves a jury, typically impaneled fromthe regular list, that may not be aware that theirdecision is merely advisory. In truncated proceed-ings, attorneys present their arguments briefly, andrebuttal and reply are allowed. The judge instructsthe jury, and once they render a verdict, the judgeand the attorneys are allowed to question themabout their perceptions of the case and the effec-tiveness of the presentations. Most often, afterminitrials and summary jury trials, the presidingofficer meets with the parties to foster settlement inlight of the new information about the strength oftheir cases and potential risks in an actual courtproceeding.

Negotiation Theory and RolesA common feature of these forms of ADR is thatthey operate within a framework of conventionalnegotiation theory. The working assumption is thatthere is a "fixed pie" of assets or resources, and themain purpose of a negotiator is to maximize his orher share. Each party will have a reserve price,below which they would rather walk away fromthe deal. If both parties are willing to accept a giventrade, then there is a "positive bargaining zone"and a deal should take place, even if the offer doesnot match some amount that they would ideallylike to pay or receive. Often, the negotiation isthought of as a win/lose endeavor, where a gain forone side is perceived as a loss for the other. Theparties stake positions and may get emotionallyattached to them, with the result that any conces-sion is considered a sign of weakness. Under-standably, this kind of approach fosters posturing,bluffing, and brinkmanship.

One value of an arbitrator, then, is that whenparties recognize that it is in their interest to cometo a deal, but reach an impasse over the preciseterms, they can turn to a third party to determinethe appropriate distribution. Arbitration is typical-

84 Elder's Advisor

ly less emotionally charged than face-to-face nego-tiation, largely because the parties are making theircase to a neutral third party rather than to someonethey perceive as an adversary. Arbitrators can alsoserve a useful function in diffusing or deflecting theanimosity of a contentious negotiation, since it maybe more acceptable to have a negotiator explainthat particular concessions or a suboptimal out-come was the result of a third party's ruling ratherthan their shortcomings. A number of these proce-dures act as "reality checks" so that negotiatorscan make more realistic assessments of the likelyoutcomes and the strength of their cases, and thusmake more rational choices about whether to settleor continue with litigation.

Arbitration can be much more efficient than lit-igation, because parties can achieve settlementrapidly and at less cost. Arbitration may also beless contentious than adversarial procedures.Arbitration echoes formal litigation, and worksbest when the issues are distributive, in the sensethat there is a limited amount of resources to beshared among the parties. However, parties shouldrealize that courts are very reluctant to interferewith a decision to which the parties have voluntar-ily assented. The basis of state legislation favorableto arbitration is the Uniform Arbitration Act,adopted by the Commissioners on Uniform StateLaws and endorsed by the American BarAssociation (ABA) in 1955. Under the Act, a judgeis required to enforce a binding, voluntary arbitra-tion award, and opportunities to challenge theaward are limited to grounds such as fraud or cor-ruption." Parties may potentially be bound by asettlement that they believe to be unjust withoutany legal recourse. Furthermore, arbitrated caseshave no precedential force, and so outcomes mayvary widely from case to case, even if fact patternsare similar.

OmbudsmanAn ombudsman typically is a third party sponsoredby an institution to act as a fact finder or adjuster.Although ombudsmen may be salaried, they areprofessionally neutral. They investigate complaintsor grievances from an institution's constituents,employees, or clients. Typically they use informalmeans and make non-binding recommendations tosenior management. Their prime allegiance is notto the institution as such, but rather to the facts,natural justice, and equity for the constituents.' 2

The ombudsman does not just deal in griev-ances, but is open to all kinds of problems. Usually,ombudsmen deal with those who feel less powerfulthan others in an atmosphere that seeks to protectcomplainants from retribution. Because of the con-cern for confidentiality, very few records are kept,and most ombudsmen resist appearing as witnessesin judicial proceedings. While they have littlepower to unilaterally alter decisions, they workthrough both formal and informal channels to alertthe organization to problems and advocate for vic-tims of an injustice. Their functions include hearingthe issues of a dispute or grievance, which may beimportant if the client's main interest is in "vent-ing" their problem rather than seeking redress; pro-viding and receiving information, to clarify institu-tional policies, for example, or hear about unsafepractices; reviewing options with any party; pro-viding referrals to experts or other resources; andproviding direct assistance to solve practical prob-lems.'3 Assisting clients might be as straightforwardas helping them write a letter. In other cases theombudsman may act as a mediator or broker a set-tlement through "shuttle diplomacy," representingthe views of each party to the other without anydirect confrontation. A good deal of an ombuds-man's work will involve fact-finding. For instance,an ombudsman may establish whether a paymentwas made on time, or whether a client is entitled toa subsidy, or who made a particular decision.

The federal government initiated its use ofombudsmen in 1972. The Ombudsman Program isnow established in all states under the OlderAmericans Act, administered by theAdministration on Aging (AoA) specifically toadvocate on behalf of older residents of long-termcare facilities. Under Title VII of the OlderAmericans Act, ombudsman officers investigatecomplaints by or on behalf of residents, provideinformation about facilities, represent the interestsof residents before governmental agencies, andactively seek administrative, legal, or informalremedies. 4 They are also charged to analyze lawspertaining to the health, safety, and welfare of res-idents; educate consumers; and provide technicalsupport for the development of resident and familycouncils to protect the well-being and rights of res-idents. In 1998, more than 900 paid officers and7,000 certified volunteers worked in 587 locationsnationwide." Under government auspices, they reg-ularly visit facilities, monitor conditions, and "pro-

ARTICLE Promises and Problems in Alternative Dispute Resolution for the Elderly

vide a voice for those unable to speak for them-selves." 6 They supplied information on long-termcare to some 200,000 people, and investigatedroughly the same number of complaints. Themajority of complaints dealt with lack of residentcare due to inadequate staffing, accidents, lack ofrespect, and demands for care plans and residentassessment. "7

An ombudsman's office is capable of bringingabout timely remedies in a confidential manner.Ombudsmen can guide clients to appropriateresources and procedures to deal with concerns.Their role is often that of "fire-fighters" who dealwith immediate problems as efficiently as they can.Their presence at the site of the grievance and abil-ity to speak with those who can provide informa-tion brings many unsatisfactory situations to anend.

Generally, though, ombudsmen are not lawyersand are not qualified to give legal advice. Somecases, like suspected abuse or the denial of legalentitlements, could be short-changed if the institu-tion chooses only to deal with the immediate casein the most expedient way possible. Therefore,clients need to be made aware of the legal optionsavailable and judge whether a court ruling wouldbe more appropriate in any given case.

MediationMediation occurs when a neutral third party is vol-untarily invited to assist disputing parties toachieve a settlement. Mediators typically areaccomplished negotiators who manage the processof bargaining between the parties. Unlike arbitra-tors, mediators have no power to impose an out-come on the parties. Another significant differenceis that mediators tend to have a broader view ofdisputes and possible outcomes, which may benovel or inventive when contrasted to traditionalnotions of "splitting the pie."

Chris Moore, author of The Mediation Process,suggests that when we negotiate three differentinterests work simultaneously."' First, we seek tomaximize the substantive outcome. Second, wealso want to believe the process was fair and defen-sible. And, third, we need to feel psychologicallysatisfied with the settlement. The difficulty withlooking only at a substantive solution is evident inexamples such as paying for an item only to find iton sale for half the price in a different store. We feelaggrieved that we overspent. Moreover, whatever

price we have paid, we would probably have mis-givings if we felt "railroaded" into an agreement, afailure of the process. A sense of grievance also isvery likely if we feel there was no opportunity toexpress our views, or if we didn't trust the personwe were dealing with. In these second and thirdexamples, the substantive "win" may be offset bylack of satisfaction on the other dimensions of thenegotiation. The three aspects of successful negoti-ation interact. For example, a customer may preferto pay a higher price to avoid haggling when mak-ing a deal. In Moore's terms, this is not a bad out-come, merely a trade of the substantive dollaramount for a greater degree of psychological wel-fare. Moore suggests that negotiators need to feelsatisfied in all three dimensions for an agreement tobe lasting.

Bargaining that attempts to maximally satisfyall three dimensions of interests begins with dis-covery of the parties' underlying concerns asopposed to the positions that they espouse. Findingout the reasons behind a stated claim does this. Forexample, a person who disputes the level of careprovided for her husband in a nursing home maybe doing so based on comparisons with the experi-ence of friends in similar situations, because shefeels guilty and compensates by browbeating thefacility into doing extra services, or because shefeels that the facility does poorly when comparedto others in the vicinity. When the interests havebeen established-perhaps her need to justify heractions to her peers, her need to be assured that sheis doing everything she can, or her feeling that sheis not getting value for money-general criteria foragreement can be developed. The wife and thefacility administration can, for example, adopt fed-eral quality of care guidelines as a threshold ofwhat is acceptable. They might make realistic com-parisons with other service providers or providemore satisfying involvement for the wife in her hus-band's level of care.

This level of abstraction allows the parties togenerate multiple options for settlement. A key ele-ment is for the parties to find agreement in princi-ple, again at a fairly abstract level. Thus partiesmay agree on, say, the principle of splitting assetsequally among several children regardless of theirindividual needs or that "reasonable" pay in agiven position would be an average of the wagepaid for the same sort of job in the area. Manyassert that it is easier to argue rationally about the

86 Elder's Advisor

foundation principles than it is to haggle over spe-cific positions.'9

Mediators can take on many roles in a negotia-tion including, but not limited to, the following:

" Opener and facilitator of communicationchannels

" Process manager who provides a procedureand often formally chairs the negotiation ses-sion

" Trainer who educates novice, unskilled, orunprepared negotiators

" Resource expander who provides proceduralassistance to the parties and links them to out-side experts and resources, such as lawyers,technical experts, decision makers, or addi-tional goods for exchange that may enablethem to enlarge acceptable settlement options

" Problem explorer who enables people in dis-pute to examine a problem from a variety ofviewpoints, assists them in defining basicissues and interests, and looks for mutuallysatisfactory options

" Agent of reality who helps build a reasonableand implementable settlement and who ques-tions and challenges parties that have extremeand unrealistic goals. 0

Mediation also encompasses a wide range ofapproaches. Some mediators are more directivethan others are, in that they actively intervene bothin steering the process and in crafting options forsettlements.' Others see their role as facilitatingmeetings and allowing the disputants to come upwith their own solutions.

Mediators usually have telephone or in-personinterviews with the parties prior to joint sessions.Many mediators work in pairs, which gives themgreater flexibility since they don't have to simulta-neously act as participant and observer of the nego-tiation. A typical session will begin with an open-ing statement by the mediator, establishing mutual-ly acceptable ground rules. Then each side stateshow they came to be in mediation, the sort of set-tlement they are looking for, and what they believetheir alternatives are if the mediation fails to givethem a satisfactory outcome. The mediator willprobably "reframe" the issues presented in terms ofinterests. Thus, a claim such as "My grandfatherwill never leave the house he was born in" (a posi-tional assertion) might be recast by the mediator as

"So, you believe that your grandfather has a strongemotional attachment to the house he lives in?" (anacknowledgment of one party's psychological inter-est that shapes the pronouncement). Reframing isoften done as a question, so that the speaker maychoose whether or not the new statement is correct.

Once the various issues and interests are estab-lished, the mediator searches for common groundin order to establish an agreement in principle.Both sides then collaboratively generate options forsettlement based on the interests that have beenvoiced and the criteria that are mutually accept-able. Mediators may also choose to "caucus," ormeet individually with one side or the other. Thevarious options are then assessed and some finalbargaining occurs.

Mediators actively seek integrative solutions,adding to the mix of issues and resources in the dis-pute, since one way to improve settlements is to"expand the pie," or the range of elements in thenegotiation. The solution can then integrate newfacts or views and take some pressure away fromthe matters that have been causing the most diffi-culty. For example, children of elderly parentsarguing over how to divide a given amount of timespent caring for the parents may not be aware ofsubsidized third-party care, which would widen therange of possibilities open to them. Adding third-party care may raise issues of who pays, whosupervises, and whether the care is appropriate, butthe additional help eases the current dilemma.Because mediation is not limited to simply allocat-ing resources, settlements may be creative, novel,and legally unenforceable, yet parties will agree tothem because they "own" the solution-ratherthan having it imposed on them-and believe it tobe workable. Such discussions and settlementsoften are a more effective means of addressingissues such as anger or a need for respect thaneither positional bargaining or legal adjudication.

Mediation is especially effective where the dis-putants must or choose to continue their relation-ship beyond the immediate negotiation, as in fami-ly disputes or workplace issues where terminationis not an option. It holds the possibility of educat-ing the parties to deal with each other more effec-tively in the future. It is also very useful where set-tlement is complex since the issues are difficult toquantify since they are not limited to monetaryawards or time allocations, such as multiparty orintrafamily disputes. Mediation is also most appro-

ARTICLE Promises and Problems in Alternative Dispute Resolution for the Elderly 87

priate when the psychological aspects of the dis-pute are as important as the substantive issues,including cases in which an apology or taking thetime to listen to concerns matters as much to a dis-putant as any eventual award. As Lisi and Burns, ofthe Center for Social Gerontology in Ann Arbor,Michigan, suggest:

[T]hrough mediation, the family may for the first timebe able to focus on the needs of the proposed wardand the importance of having the care givers and fam-ily working together to provide the necessary care forthe person.... Mediation offers a way to explore thereal abilities and needs of the proposed ward, find ser-vices that can provide those needs, and work out con-flicts while serving both the autonomy of the older ordisabled person and improving family relationships.'

Mediation as guided problem-solving is notappropriate for every dispute. For success, bothnegotiating parties must at least make a commit-ment to the process of interest-based bargaining.They must be willing accept the mediator's tech-niques, which are likely to include open disclosureand treating the situation as a problem to be over-come rather than a contest to be won. Mediationpresumes that people recognize what they want,that they are capable of autonomous choices, andthat they will be able to articulate their desired out-come.

Some personality types and some kinds of dis-putes may not be suited to mediation because thereis either no willingness to settle or the parties havea psychological need to engage in win/lose negotia-tion. In other cases, there may be no way to extendthe amount of resources brought into the negotia-tion, and there are no other interests involved. Thiswould be the case, for example, where two insur-ance adjusters meet to come to a financial settle-ment. In this kind of case, the question simplybecomes one of allocation based on set guidelines.

Interest-based bargaining has great potential forreaching lasting settlements that satisfy specificinterests in a way that promotes trust and goodrelationships. However, it does not automaticallyturn difficult disputes into ones that are easilyresolvable. It takes time, a cooperative environ-ment, and a willingness to disclose on the part ofthe parties. It is also quite a complex processrequiring skill and practice. Everyone negotiatesevery day, but rarely with the creativity and trust

that interest-based bargaining requires. In caseswhere the desired outcome is less clear than ablack-and-white solution, interest-based bargain-ing does seem to offer a way for disputants to reachagreement so that both parties can feel satisfied,rather than one coming out as the loser. Empiricalevidence suggests that mediated agreements arequicker, less expensive, and achieve more satisfac-tory solutions than litigated ones.23

Qualifications and LicensureMediators tend to come from two backgrounds,either the law or the therapeutic professions, likecounseling or social work. At present, there are nostandard qualifications for mediators, with theresult that anyone can put himself or herself for-ward as a qualified mediator. Court-appointedmediators, however, are subject to minimum quali-fications in at least 11 states.24 These credentialstypically involve completing a course of training inmediation (usually between 25 and 40 hours) by anapproved provider. Florida is perhaps the moststringent, requiring 20 hours of training and fourobserved mediations for county court mediators,and 40 hours of training, observed mediation ses-sions and supervised sessions, and bar membershipfor circuit court mediators. Florida family media-tors require 40 hours of training, a relevantadvanced degree or certification, two observed ses-sions, and two supervised sessions. Critics of cre-dential requirements have claimed that some of themost able mediators do not have degrees, thatmediation is as much intuitive as learned, and thatbar membership, for example, effectively turnsmediation into a franchise of the legal profession.5

A mediator may be associated with any of sev-eral professional associations, including the nation-al Society of Professionals in Dispute Resolution(SPIDR) and the American Arbitration Association(AAA), and similar state organizations.26

Membership in a professional organization doesnot, by itself, guarantee a level of expertise,although one of the hallmarks of membership isadherence to a code of conduct for mediators. TheABA, AAA, and SPIDR have a joint set of stan-dards of conduct. 27 The section of that code onmediator competence states that mediators may beselected solely on the basis of client acceptance,although they recommend training and experience.It recommends that mediators should have infor-mation available for parties outlining their back-

88 Elder's Advisor

ground and qualifications. Social workers who actas mediators have additional duties outlined underthe National Association of Social WorkersStandards of Practice, which requires additionaltraining and education in dispute resolution theo-ry. 8 Individuals seeking mediation services shouldtherefore be diligent in finding out the level oftraining and experience of individual mediators,whether they belong to a professional association,and if they are associated with a mediation organi-zation that provides continuing education andfeedback.

Courts have not yet recognized mediator mal-practice. Because of disparate training and stan-dards, mere ineptitude has not been actionable. It isplausible that mediators may be found guilty ofmalpractice based on standards of care derivedfrom rules governing their professions of origin,such as social worker or psychologist. However,this is less likely to prevail if the mediator disclaimsthat profession while acting as a neutral.

Lawyers practicing mediation may face conflict-ing duties and be bound to disclosure or with-drawal from future dealings with the parties. ABAModel Rule 5.7 deals with the conduct of lawyersin providing other services "that might reasonablybe performed in conjunction with and in substanceare related to the provision of legal services, andthat are not prohibited as unauthorized practice oflaw when provided by a non-lawyer."" InPennsylvania, Bar Opinion 96-39 clearly states thatthe mediation entity should not serve the firm'sclients, and the firm not take on any mediation cus-tomers as clients. Further, participants in mediationmust not be led to believe that they are receivinglegal services. States have differed on whethermediation participants may subsequently be repre-sented by the mediator-lawyer in any matter thatpertains to the mediation."

Attorneys also need to be aware that mediatorsare not advocates for either side. Rather, they havea professional duty to all parties at the table, evenif only one side pays for the session. A lawyershould not give legal advice while serving as amediator,3' and it is generally recommended thatthe parties consult another lawyer for help in thedrafting and review of final agreements.

ConfidentialityMediation is a confidential process, and most con-tracts to mediate will demand confidentiality from

all parties. Generally, all settlement conferences arecovered by Rule 408 of the Federal Rules ofEvidence.32 The intention behind this is that indi-viduals may state facts, explore issues, or extendoffers more freely than they would if they knewthat anything they said could potentially be usedagainst them in court. Given this security, dis-putants may be encouraged to speak about theirmotives and their true bottom line. They need notposture or "play to the gallery"; as a result, discus-sions can be frank and open. Most states havestatutes giving almost blanket confidentiality tomediation sessions. Although mediators have beensubpoenaed, courts have generally held that main-taining the process as an expeditious way to settledisputes is a greater public interest than revelationof facts in particular disputes.33

Power ImbalancesMediators often claim to be process managers. Thishas generated some criticism, in that a truly neutralmediator may perpetuate existing power balances.For example, consider the instance of an elderlycouple who is in dispute over the best way to dis-perse their assets among the children. It would notbe unusual for one spouse to have made the impor-tant financial decisions throughout the marriageand to expect to continue to do so. This expecta-tion is likely to extend even to a mediation setting.That individual's superior power is unlike a litiga-tion setting where, in theory at least, litigants cometo the courthouse steps with equal power becausethey are represented by attorneys. Mediation hasno similar safeguards.

Power imbalance is a serious concern, especial-ly when mediation may involve traditionally under-empowered groups. For example, a patient, typi-cally seen in a passive and obedient role, may bereluctant to question authority figures, while a sur-geon may be used to and comfortable in givingunequivocal recommendations. 3

' The mediatorconsiders whether and how the power imbalanceaffects the negotiation and result. The mediatorcould justify allowing a negotiation with one sideseemingly less powerful than the other, since anymediation is voluntary. However, the mediator mayact to make sure that both sides come to the nego-tiation fully informed and autonomous. One sim-ple technique is asking questions of the less power-ful negotiator, such as "Is that what you reallywant at this point?" or "Do you think you may

ARTICLE Promises and Problems in Alternative Dispute Resolution for the Elderly 89

regret this decision when you look back on it in fiveyears time?" Thus, despite a power imbalance, theless able negotiator may nevertheless be willing andable to reach an acceptable settlement.

Another option is for the mediator to act as acoach (but not an advocate) for one party, helpingto articulate concerns and frame issues in a waythat is more likely to lead to a lasting settlement.Perhaps an elderly patient does not want to under-go any more hospitalization, even at the risk ofshortening his life. We can imagine that a mediatorcould help him express that wish in a way thatcauses the surgeon to respect the patient'sautonomous choice.

In a sense, this departs from mediator neutrali-ty. However, the mediator can provide this guid-ance openly and with the consent of the "stronger"party. The mediator may explain that it is in thesurgeon's ultimate interests to allow the mediatorto assist the patient despite his belief that treatmentis medically necessary, since the patient who iseffectively bullied into consent may be resentfuland angry regardless of the medical result. Thoughthe mediated outcome runs counter to medicaladvice, it minimizes subsequent exposure to legalaction. A mediator should inform both clientsabout his or her approach and gain their consentfor continuing the mediation.

Choosing the Appropriate ForumDisputants have a number of choices in attemptingto resolve their differences beyond private negotia-tion. Let us consider a short case:

A nursing home failed to follow an Advanced

Directive for a deceased resident, leading to extensive

life support and substantial extra costs. The daughter

refused to pay these, and was taken to court by man-

agement."

As with most cases, the legal issues are not com-pletely clear, and it is uncertain who would prevailin court. This means that the parties are likely to beengaged in adversarial proceedings, at considerablecost, over a period of many months or years. Giventhat alternative, it is probably in the interests ofboth parties to attempt ADR.

As it turned out, this dispute was resolved inmediation, although either arbitration or interven-tion by an ombudsman also could have been effec-tive. The daughter had a deep need to express her

anger and frustration at seeing her mother's pro-longed suffering. This prompted the manager toapologize for having lost the advance directive andstarting resuscitation. Once the emotional issueshad been aired, the manager offered to withdrawthe bill for the extra costs, if the daughter paid therest of the outstanding care bill. The daughteragreed and said that her mother had otherwisealways been very happy at the home.

This sort of solution would be acceptable undercurrent mediation practice since the daughter hashad her psychological, process, and substantiveinterests served to her personal satisfaction.However, though the case may seem to be a clearsuccess story for ADR, there may be reasons toobject to this conclusion. First, the daughter mightbe owed significant compensation under previouscourt rulings if the case were litigated, yet she hasagreed to accept the manager's offer to waive theextra bill. There is little possibility of complainingof the mediated agreement in a future court action.Also, if there are few precedents for the type of dis-pute, others might be assisted by the record of thelitigation in which the courts set a precedent ofappropriate action in the case of failure to complywith advanced directives. The mediation, of course,is confidential and lacks any public record. Somecritics of mediation suggest that the daughter is avictim of "second-class justice," deprived of herlegal rights and remedies." If a whole class of dis-putes of a certain type were subject only to media-tion, no precedents to establish a guide for justicethrough the courts can develop.

The Administrative Dispute Resolution Act of1990 advises that agencies consider not using ADRin the following circumstances:

1. When an authoritative precedent is needed;2. When uniformity of result is important for pol-

icy reasons, and the use of ADR might result indifferent decisions;

3. When the matter significantly affects persons orgroups that are not parties to the proceeding;

4. When a full public record is important; or5. When the matter is one over which the agency

will maintain continuing jurisdiction, withauthority to alter the disposition in the light ofchanged circumstances. 7

These cautions need not deal a mortal blow toADR. It holds the promise of efficient, nonadver-

Elder's Advisor

sarial, and lasting settlements. Many clients wouldprefer instant remedies to having their cases serveas tests for determining social policy. Nevertheless,the cautions demonstrate that parties who useADR should do so with full awareness of what theprocesses entail and the possible awards they mayforgo when they don't go to court. Moreover, any-one who considers ADR ought to be clear aboutthe wider implications of their actions if they wishto provide a test of the issues that may benefit oth-ers, or if they want the gravity of a traditional judi-cial decision for themselves.

Institutions should implement safeguards toensure that all cases proposed for ADR arescreened for suitability before being sent to privateresolution mechanisms. The District of ColumbiaDepartment of Human Rights, for example, retainsall class actions or complaints against repeatoffenders for enforcement. 8 The department refersmany individual complaints-including those ofseniors-for mediation by the Center for DisputeResolution in Washington, D.C.

Finally, these cautions about ADR reinforce theclaim that lawyers should have an active role inmonitoring cases diverted from the traditional jus-tice system and in reviewing agreements drafted ininformal negotiations.

Endnotes1. THE REPUBLIC, III 405 (Penguin Books 1996).

2. See, e.g., PETER LOVENHEIM, MEDIATE, DON'TLITIGATE, 9 (1989).

3. See, e.g., author David Goldfarb, Longer Lives,Tougher Issues, N.J.L.J., Aug. 10, 1998 at 25.

4. See, e.g., Ruth Parsons & Enid Cox, FamilyMediation in Elder Caregiving Decisions: An

Empowerment Intervention, SOCIAL WORK, March1989, 122-126, 122; Susan Gary, Mediation and

the Elderly: Using Mediation to Resolve ProbateDisputes Over Guardianship and Inheritance, 52WAKE FOREST L. REV. 397, 444 (1997).

5. See, e.g., Larry Ray, Emerging Options in Dispute

Resolution, A.B.A. J., June 1989 66, 66.

6. See, e.g., Give Up Your Right to Sue?, CONSUMERREP., May 2000 8, 8 (describing uses of predisputearbitration clause and proposed legislation).

7. In Hadden v. Kaiser Foundation Hospitals, forexample, the California Supreme Court ruled thatpublic policy in California favors the expeditious,inexpensive, resolution of malpractice cases offeredby arbitration. See 552 P. 2d 1178 (Cal. 1976). Atleast 13 states have legislation providing forenforcement of arbitration agreements coveringmedical malpractice, including Alabama, Alaska,California, Colorado, Georgia, Illinois, Louisiana,Maine, Michigan, Ohio, South Dakota, Vermont,and Virginia. See Rhoda M. Powsner & FrancisHamermesh, Medical Malpractice Crisis theSecond Time Around, 8 J. LEGAL MED. 283, 286(1987).

8. FED. R. Evi. 706 (regarding experts appointed bythe court on its own motion to testify regardingmatters at issue in a proceeding).

9. See Wayne D. Brazil et al., Early NeutralEvaluation: An Experimental Effort to ExpediteDispute Resolution, 69 JUDICATURE 236, 279(1987).

10. For decisions that support the right of a court tocompel a reluctant party to participate in a sum-mary jury trial, see McKay v. Ashland Oil, Inc.,120 ER.D. 43 (E.D. KY. 1988); Arabian AmericanOil Company v. Scarfone, 119 F.R.D. 488 (M.D.Fla. 1988).

11. See David Pantle, The Duty of an Attorney asArbitrator to Disclose Possible Bias, 18 COLO. L.859, 859 (1989).

12. See Tom Arnold, A Vocabulary of AlternativeDispute Resolution Procedures 58 (1995) reprintedin E. WENDY TRACHTE HUBER & STEPHEN HUBER,ALTERNATIVE DISPUTE RESOLUTION: STRATEGIES FOR

LAW AND BusNEss 833 (1996).

13. See Mary Rowe, Options, Functions and Skills:What an Organizational Ombudsman Might Wantto Know, 11 NEGOTIATION J. 103, 103 (1995).

14. Title VII of Older Americans Act is codifiedthroughout 42 U.S.C § 3000.

15. At the time of writing, the AoA has an EldercareOmbudsman Locator service at 1-800-677-1116.

16. See <http://www.aoa.dhhs.gov/factsheets.ombudsman.html>.

17. See id.

ARTICLE Promises and Problems in Alternative Dispute Resolution for the Elderly 91

18. See, e.g., CHRISTOPHER MOORE, THE MEDIATION

PROCESS 37 (1986).

19. See generally, ROGER FISHER & WILLIAM URY,

GETTING TO YES (1981) (the seminal work thatespouses this approach).

20. See AMERICAN ARBITRATION ASSOCIATION, AN

OVERVIEW OF MEDIATION (1996). See alsoChristopher Moore & Kevin Gibson, TheAlternative in Alternative Dispute Resolution, 18COLO. L. 1751 (1989).

21. See, e.g., Deborah M. Kolb, THE MEDIATORS 24(1985).

22. See Lauren B. Lisi & Anne M. Burns, Mediation inGuardianship Cases: A Promising Alliance, 24CLEARINGHOUSE REV. 644, 645 (1992) quoted inYVONNE CRAIG, ELDER ABUSE AND MEDIATION 86,89 (1997).

23. See, e.g., KENNETH KRESSEL ET AL., MEDIATION

RESEARCH 33 (1989).

24. Barbara Diamond, ADR Programs in Other States(July 12, 1994) (memo to the Structure andFinance Subcommittee, State Bar of MassachusettsStanding Committee on Dispute Resolution) citedin E. WENDY TRACHTE-HUBER & STEPHEN HUBER,

ALTERNATIVE DISPUTE RESOLUTION: STRATEGIES FORLAW AND BUSINESS at 1162 (1996)(the states areCalifornia, Florida, Minnesota, New York,Oklahoma, Texas, Nebraska, North Carolina,Oregon, Utah, and Hawaii).

25. See James J. Alfini, Trashing, Bashing and HashingIt Out: Is This the End of "Good Mediation?" 19FLA. ST. U. L. REV. 47, 58 (1991).

26. The organizations may be reached at Society ofProfessionals in Dispute Resolution, 1527 NewHampshire Ave., 3d F1 Washington, D.C. 20036;Nat'l Inst. of Dispute Resolution, Suite 500, 1726 MSt. NW, Washington DC 20036; Amer. Arb. Assoc.,140 S. 51st St., New York, NY 10020; Amer. Assoc.of Family Counselors and Mediators, 5225 Rte. 347Ste. 26, Port Jefferson Sm., NY 11776.

27. MODEL STANDARDS OF CONDUCT FOR MEDIATORS

(1994) available at <www.adr.org/roster/mediators/standard.html>.

28. See NATIONAL ASSOCIATION OF SOCIAL WORKERS,

STANDARDS OF PRACTICE FOR SOCIAL WORK (1997).

29. See Arthur Garwin, Double Identity: Ethics IssuesDo Not Disappear for Lawyers Who Serve AsMediators, A.B.A. J., June 1998 at 88, 88.

30. See, e.g., Poly Software Int'l v. Su, 880 E Supp.1487 (1995) (limiting disqualifications so as to dis-courage lawyers serving as mediators); Tex. BarOpinion 496 (1994) (disqualifying subsequent rep-resentation by lawyers acting as mediators).

31. See supra note 29.

32. See FED. R. EViD. 408 which states, in part:

Evidence of (1) furnishing or offering or promis-ing to furnish, or (2) accepting or offering orpromising to accept, a valuable consideration incompromising or attempting to compromise aclaim which was disputed as to either validity oramount, is not admissible to prove liability foror invalidity of the claim or its amount.Evidence of conduct or statements made in com-promise negotiations is likewise not admissible.

33. See ADMIN. CONF. OF THE U.S., ENCOURAGING

SETTLEMENTS BY PROTECTING MEDIATOR

CONFIDENTIALITY, RECOMMENDATION 88-11, 1

C.ER. § 305.88-11 available at <www.law.fsu.edu/library/admin/acus/3058811.html>.

34. See, e.g., Owen Fiss, Against Settlement, 93 YALEL.J. 1073, 1089 (1984) WILLIAM URY, ET AL.,GETTING DISPUTES RESOLVED 59 (1988) (notingqualifications).

35. See Craig, supra note 22, at 139.

36. See Fiss, supra note 34 at 1089.

37. ADMIN. DISPUTE RESOLUTION ACT S 572b (1990).

38. See Craig, supra note 22, at 86.