Mediating the Aftermath of Terri Schiavo’s Death


by Douglas Noll

See article by Robert Benjamin: Schindler v. Schiavo: The Real Negotiation for Your Soul

June 2005

Douglas Noll Terri Schiavo’s death has dropped from the news. For the family, the news trucks, interviews, and spotlights have been turned off, but the hostility, anger, and unresolved conflict must remain. Considering the 12 year conflict played out in the courts, the Florida legislature, the United States Congress and the White House, could reconciliation between the family members be possible? As a peacemaker, I think so. I also believe that until the family reconciles, personal healing will be very difficult.

So how would a peacemaker approach this intense, very personal, very private, yet very public family conflict? In this case, we can expect that Bob and Mary Schindler, Terri’s parents, and Michael Shiavo, her husband, detest each other. Thus, expecting them to come together at the outset to discuss their issues would be naïve and unrealistic. The idea that people in highly escalated conflicts can talk rationally to each other is simply wrong. When people are emotionally charged, they are reactive, defensive, and anxious. They are not ready to talk out their differences calmly. Much of the peacemaker’s work is in preparing the parties to talk to each other. If the preparation is thorough, a later peacemaking conference can be fruitful.

Preparing for peace requires a series of individual meetings. In these private conferences, the peacemaker will ask each person to reflect on the history of the conflict. What were the key points during the conflict? What emotions and feelings were experienced at each point? How did the others appear to feel? Much of the conflict focused on Terri’s interests and needs. The peacemaker would turn away from this and ask the family members to reflect on and identify their personal needs, interests, goals, and desires. How did each event satisfy or thwart those needs? Gradually, the parties would learn that Terri was in many ways a symbol for their deeper, unrealized relationship and identity goals. As long as the focus was on Terri’s needs, the parties did not have to look at their own needs and interests.

Accusations escalated as the conflict escalated. For example, the Schindler’s accused Michael Shiavo of adultery and “wasting, embezzling, or other mismanagement of [Terri’s funds].” Schiavo accused the Schindler’s of fomenting the conflict because they did not share in the malpractice settlement money. Each side accused the other acting dishonestly and disreputably. Worse, these rounds of insults and charges were played out in the media. From the peacemaker’s perspective, a complete breakdown in empathy occurred. Each family member individually and privately would be gently urged to consider the possibility of other perspectives by telling the other side’s story to the peacemaker. This reflective exercise causes people to open themselves to a broader story than they had earlier perceived. Subtle yet important emotional shifts occur as people are asked to recast the story through the eyes of their adversary.

Injustices have played a major role in this conflict. The peacemaker will therefore spend time inquiring about injustices. How have the injustices been experienced? What are the injustices? The parties will initially be seeking retribution—“He/She hurt me and I want him/her to suffer just like I did!” This is a typical and expected reaction to injustice and injury. Peace can only be found when the parties move away from justice as retribution and seek justice through restoration of relationships. Simple questions from the peacemaker can cause people to reflect on the personal effects of retribution. How would punishing or penalizing the other party make your sense of injustice go away? As people think about this and try on what retribution would feel like, they learn that it does not satisfy them. This opens the door to other options. Recognizing that many injustices cannot be righted, what could the other side do to help make things right? How would you feel if the other party strived to make things right with you?

As the parties came to understand the subtleties and nuances of the conflict, discussions about process would begin. How will it feel to sit across the table from Bob and Mary or Michael? What feelings are likely to come up for you? How will you respond to those feelings? What would be a successful outcome for you? What would be a miraculous outcome for you? The parties will tend to focus away from themselves during this conversation. For example, Bob might say, “I hope that Michael apologizes for all the pain he caused me.” The peacemaker would ask Bob to focus on himself by asking, “Recognizing that is what you would want from Michael, what would be successful for you—how would you feel?”

Eventually, the parties will be ready to sit across from each other. The peacemaker must create a safe, protected space for the difficult conversations to occur. The discussions will be emotional and heated at times. With proper preparation, however, the parties can be shown the path towards reconciliation, forgiveness, and restoration of their family relationship. It would not be an easy path for them to walk, but with the help of the peacemaker, they could find peace in Terri’s death that eluded them during her life.



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Biography




Douglas E. Noll, Esq. is a full time peacemaker and mediator specializing in difficult and intractable conflicts. In addition to being a lawyer, Mr. Noll holds a Masters Degree in Peacemaking and Conflict Studies. He has mediated and arbitrated over 1,200 cases, including a large number of construction, construction defect, and real estate matters involving tens of millions of dollars. He is a nationally recognized author, speaker, and lecturer on advanced peacemaking and mediation theory and practice. Mr. Noll is a Fellow of the International Academy of Mediators, a Fellow of the American College of Civil Trial Mediators, and on numerous national arbitration panels.

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Website: www.nollassociates.com

Additional articles by Douglas Noll



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 susane ,   Tampa FL    07/21/05 
 Schiavo 
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The impact of the national right-to-life organization on the parents must not be underestimated. It is my understanding that they encouraged the Schindlers: financially and in counseling. In order to further their own goals, they enjoined themselves to this family and drove this event which included offering Terry's husband money to "go away" and leave her in their hands. Now that the issue is "resolved", the group is gone. And the Schindlers are left to deal with their personal feelings and sort out what happened. My personal opinion, based on what I have been told is that Terry's collapse was the result of radical dieting. Whether or not her husband responded timely or appropriately, I do not believe any of us will ever know. However, since they were husband and wife, and if this union as viewed Biblically, then the parents of either side must stay out of the relationship. The Schindlers stated that they knew Terry would have wanted to live. Her husband stated that he knew otherwise and instead of taking the malpractice insurance settlement money and leaving his wife, he spent it on this saga. In the end, could more good have been achieved if the parents had simply closed their ears to the outside voices and allowed the matter to remain private? And further perhaps not spent all this money on lawyers, instead allowing Terry to die with some dignity and use the balance of the money to do something which would have done some good in her memory? Legally, it raised concern that citizens needed a specific living will setting out their specific requests in the event that they should be found in the same situation as Terry. The Governor and other politicians attempted to overstep their authority and create emergency law to achieve their own career goals. That brought up a constiutionality issue. Now that the Terry issue is back page news, so is their interest. It is my understanding that Michael Schiavo has issues with her family's lack of support and interest after Terry's collapse for several years. Further that the Schindlers have issues with Michael regarding his actions or non-actions and handling of this matter involving their daughter. After all that the outside "do gooders" and media have done to these people, I am not confident that they will be receptive any time soon to any reconciliation/resolution of the conflict.
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 Bill Robinson,   San Clemente CA    07/15/05 
 Calm down Mr. Itzkoff 
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It was not my intention to get into a spitting contest with Mr. Itzkoff. With all due respect I think his reponse makes my point - its about winning. I am simply an advocate for a new process that avoids that type of attack to gain advantage. Obviously it has to be voluntary for all parties and obviously lawyers will always be involved. But even though the article deals with the aftermath, still, from the beginning, a conciliatory process would probably have worked better, not to change the result for Teri, but to change how the survivors came out of the whole mess. The point of the article was not about Teri Schaivo but about the families. Would anyone like to mediate this?
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 Norman ,   new york NY    07/15/05 
 Here's to you Mr. Robinson 
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Mr. Robinson is, of course, entitled to his opinion, but I respectfully suggest that his analysis is faulty. There are two separate issues raised by the original article. The first issue involves the carrying out of Terri Schiavo's wishes -- which no one has the legal or moral right to compromise if her wishes could be ascertained. The Court concluded that there was sufficient competent evidence to ascertain Ms. Schiavo's wishes and although it took a heroic effort, her wishes were finally honored. Whether you or anyone else would have acted differently under the circumstances in which Ms. Schiavo found herself, each of us has the right to make such choices for ourselves and everyone else should honor such wishes -- not seek to compromise them through mediation or any other intervention. The second issue raised by the original article was whether the relationship between Michael Schiavo and Ms. Schiavo's birth family should have been subjected to mediation so that after her death they could get along better. If both sides had any desire to have an ongoing relationship after Ms. Schiavo's death, the assistance of a trained mediator or other professional would in all probability be of use to them. However, another equally legitmate school of thought suggests that after Ms. Schiavo died, it was probably better for each side to go its separate way and get on with their respective lives. Either way, the choice is their's and no well meaning mediator should poke his or her nose into a relationship, or lack of relationship, unless invited to do so by the parties. Insofar as litigators are concerned, Mr. Robinson does not seem to be familiar with the fact that approximately 98% of all litigated matters are settled by litigators. I have been a mediator since the 1970s and have been very successful at resolving complex commercial disputes, which is my area of expertise. I have also been a litigation partner in a large law firm and the senior in-house litigation counsel at a multi-billion dollar international corporation. I have seen mediation from the point of view of the mediator, the disputant, and the lawyer representing the disputant. Mediation is a wonderfully effective tool when used appropriately. The art is knowing when and how to use it. Norman Jay Itzkoff
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 Bill Robinson,   San Clemente CA    07/15/05 
 Schiavo 
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The comment from Norman Jay Itzkoff illustrates the depth of the problem, whether a family dispute or any other dispute. As a litigator (I presume), Mr. Itzkoff is mired in the adversarial process and therefore there is no room for compromise because the court had made its determination, just as Teri's parents could not compromise because of their deeply held religious beliefs. The adversarial nature of our legal systems is designed to produce a winner and a loser, and Mr. Itzkoff's training is to be a winner. Mediation is an emerging wholesale change to that system that allows both sides to win. That may not appeal to the litigator, but a rational, ever developing culture demands that disputes need to be resolved in ways that cause the least harm and the greatest benefit possible to all parties.
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 John A.. ,   Cambridge MA    06/24/05 
 Keep Hope Alive, Even if Terry Isn't 
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Dear Jim: Of course I consider mediation a viable alternative for the extended family, inspired by comments in the newspaper about further family fights over attending a memorial service. Fortunately, life is not lived in the newspaper or we all would be at war about 7 hours a day. I think her husband was quoted as saying "The rest of the family is welcome as long as they behave." A tactfully handled intervention at that point might have touched whatever part of the husband prompted him to use the word "welcome" and might have somehow encouraged an opening for other members of the family who must have, at some level, really wanted to attend the service. That's from one of many mediators who offer hope and are sometimes heard. Thanks for the opportunity to comment. Sincerely, John
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