Denial of Aging and Death as Source of Conflict

Centranthus or Jupiter's Beard

Centranthus or Jupiter’s Beard

 

Autumn here in the Denver metropolitan area is beautiful.  Some of our trees’ leaves have started turning while others have not.  The apple tree in my backyard is producing many fine apples, which I am happy to eat.  Her leaves are just starting to curl a bit.  The late tomato harvest is petering out as the nights get colder.  In between the two posts on the “time out of mind” theme I wanted to write about conflict and denial.  I haven’t written about this in a while and since October is Conflict Resolution Month, I thought the time was right!  I like the language from the Colorado Senate’s Joint Resolution (13-017) on this topic:

WHEREAS, These conflict resolution processes [mediation, arbitration, facilitation, etc.] empower individuals, families, communities, organizations, and businesses to foster communication and devise solutions that are acceptable and responsive to the needs and interests of all parties involved; and

WHEREAS, Conflict resolution is taught and practiced by citizens in many school systems, universities, and graduate programs throughout Colorado and the world as a way of solving disputes; and

WHEREAS, Community-based programs work to strengthen local relationships by fairly and equitably resolving neighborhood and community conflicts and opening community dialogues based in reason and mutual respect;

So you might be wondering what conflict resolution month has to do with fall, the inevitable changes in our lives and. . . . denial? Each of us deals with change and resulting conflict differently and our “conflict style” is often a pattern of responses of types of behaviors that we use in conflict-laden situations.  We often hone these skills in our family or sibling relationships.  How we manage our concern about conflict and how much we look at it a particular conflict as a “mine, yours or ours” type of situation greatly informs our response and participation in managing and resolving a conflict.  This is particularly so in the elder law context, in which there is often a challenge (usually a constellation of them) and difficulties presented when an elder begins to slow down or fail physically or mentally.  How family members and loved ones respond to those changes has a huge impact on an elder’s well-being.

The contemporary view of conflict styles lists five basic styles:

Avoidance (a/k/a denial)

Accommodation

Compromise

Competition

Collaboration

If you have already observed that these styles are a bit of a continuum, you are astute.  The most active and engaged styles are the last two – competition and collaboration, while the least engaged are the first two – avoidance and accommodation.  The whole idea of Conflict Resolution Month is to get people to think outside their comfort zone as it relates to conflict resolution, to educate people about the array of alternatives available to assist.  This can begin early – for several years I volunteered with The Conflict Center’s Peace Day programs in area elementary schools.  Many of us don’t otherwise learn these useful skills or get to see this modeled in our daily lives, let alone practice them with our peers.

In the interest of brevity, I will finish this post with a poem from a poet friend in New York who was a participant with me at a retreat last month.  Sometimes the most important thing about “owning” a conflict is to recognize how our lives would look without the existence of conflict.  This is often very difficult to consider – especially in the context of family relationships, sibling rivalries and unbalanced power dynamics.  This poem I just received from Richard, entitled “Yellow Birds” is about birds, space and the beautiful world we share.   So please read on.

Yellow birds, flocked to the earth,

fluttering to light, leaving to the air

her emptiness, as wind gives you leave

to land, brothers and sisters singing,

to the great green reception,

your welcome home.

 

Great space brings such joy, the

opening of the thick and heavy, the

beauty whose richness obscured, now

cleared—outbreath of the inbreath—to

breathe in without restriction, with

the freedom of the letting go.

 

So our angel unfurls her wings,

exultant in the wild air, beating as

breathing, lifting into the morning light—

soaring as walking, wide and wild, our

arms swinging, above and below

joined, one body beloved.

 

So I pick my way through the

Garden paths, past empty vines, under

the frosted purple grapes, hearing the

hawk’s cry, seeing his wings soar,

knowing as my feet trod every color’s

leaves, here I am in heaven.

 

By Richard Wehrman (with gracious permission from the author)

 

That’s all for now. . .  enjoy the fall, the ripening of grapes and the stillness it all can bring.

 ©Barbara Cashman  2014   www.DenverElderLaw.org

What Should I Look for in an Elder/Probate Mediator?

If you are at the point of looking for an elder or probate mediator for a dispute that relates to:

 •            Health or medical care decisions

•             Housing Concerns, Assisted Living or Long-Term Care

•             Powers of Attorney – Health Care and Financial

•             Dementia or other cognitive, physical or emotional decline

•             Advance Directives and End-of-Life Decisions

•             Respite care and Support for Caregivers

•             Independence and self-determination vs. safety issues

•             Suspected abuse, neglect or self-neglect

OR

If you are in the midst of a legal proceeding and are exploring alternatives, either with or without legal counsel, such as:

•             Estate or Trust administration and Distribution conflicts

•             Guardianship or Conservatorship proceedings in probate court

 

You may be interested in speaking to an elder/probate mediator about resolving your dispute in mediation.  The major benefits of mediation include:

•             A confidential and safe setting to discuss private family issues

•             Ability to retain control of the outcome of the process, as opposed to litigation – where a judge decides

•             Creative outcomes can be crafted after brainstorming and evaluating various options with a mediator

•             Participation of family members and others in mediation sessions

•             Mediation is less expensive and much faster than going to court

 

But one of the concerns you may have is about what to “look for” in an elder/probate mediator.  First a detail – I refer to this type of mediation as “elder/probate” or “elder and probate” as distinguished from “elder and guardianship” which is more common in other parts of the country, because the term “elder and probate” includes guardianship, conservatorship, estate and trust administration.  In January 2012, the Canadian Centre for Elder Law (British Columbia) published a 195 page report entitled “Elder and Guardianship Mediation.”  Unfortunately, it appears that the report is no longer available online as it was in January 2012.  I liked the report because it is carefully researched (599 footnotes) and has useful appendices include reference materials.

What I find helpful from a consumer’s perspective are the parts of the report that zero in on ethical issues elder and probate mediators face as well as some of the standards of practice recognized by mediation organizations.  These are particularly useful in Colorado, because the State of Colorado does not certify, license or otherwise regulate mediators.

It gives a background of mediation’s core ethical standards: voluntariness of participation (this notwithstanding the fact that a judge may order parties to mediation); confidentiality of process; and impartiality and neutrality of the mediator.  The universe of elder law issues which are appropriate for mediation are outlined above, but generally concern most types of inter-generational or multigenerational family disputes.  These include any matters which are referred to mediation by a judge in probate court.

According to the report (at 36-48) some ethical issues that elder/probate mediators and participants may encounter include:

•             Power imbalances among disputing parties that may need to be identified before mediation is determined to be appropriate

•             Mediator’s ability to remain impartial (this is important in mediation because it does not have the “checks and balances” of procedural fairness that is built into litigation process)

•             Self-determination and capacity to participate in mediation (here an elder adult may or may not be present at the mediation and may be supported by another person)

•             Accommodation of participants and ability to support parties’ participation in process

•             Confidentiality – this is one of the key benefits of mediation, and in a multi-party mediation or where health care or support professionals may be involved, this can be challenging

•             Suspected abuse or neglect – keep in mind that Colorado, unlike most states, does not have a mandatory elder abuse reporting statute – this issue in the mediation context is controversial and should be handled with care

•             Mediator competence – as stated above, Colorado doesn’t certify or license mediators, so this can be challenging to identify what “mediator competence” looks like in the elder/probate context.    Helpful here is the ACR Section on Elder Decision-Making & Conflict Resolution’s “Elder Care and Elder Family Decision Making Mediation Training Objectives” from 2011, available here

This information is provided as a number of suggested questions to ask when you are interviewing a mediator. Feel free to ask questions!

©Barbara Cashman, LLC   www.DenverElderLaw.org