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Building Coalitions in Aging, Disability and Dispute Resolution

by ABA Commission on Legal Problems of the Elderly

Published with the permission of the American Bar Association

Executive Summary

With the “graying of America” and the increasing incidence of disabilities, conflicts involving the elderly and disabled populations will multiply.Both groups face a host of unique and often intractable problems including consumer complaints, disputes in high-density residences and long-term care, intergenerational disputes, guardianship conflicts, health care and bioethical disputes, instances of age and disability discrimination, and special education issues.

Dispute resolution resources offer great potential for assisting older persons and persons with disabilities in resolving conflicts in humane, lasting, expeditious, cost-effective and often empowering ways.

In 1998, the American Bar Association Commission on Legal Problems of the Elderly received funding from The William and Flora Hewlett Foundation to promote the integration of conflict resolution in the aging and disability fields. Through the grant, the ABA Commission initiated the development of four state or regional coalitions on aging, disability and dispute resolution, sponsored by: The Dispute Resolution Center of Central Montana in Bozeman, MT; The Montgomery County Mediation Center in Norristown, PA; Just Solutions in Louisville, KY; and The Elder Law Institute, Institute for Advanced Legal Studies, University of Denver College of Law in Denver, CO.

This report profiles each of these four imaginative projects as models for replication in other areas. It also identifies key approaches to developing successful projects. The basic tenets listed will help to spark creative new links and make the dispute resolution process a life-enhancing and empowering experience for older persons and persons with disabilities.

The goal is to give these populations a “voice” they may not otherwise have when problems arise.

About the ABA Commission on Legal Problems of the Elderly . . .

The Commission on Legal Problems of the Elderly is dedicated to examining the law-related concerns of older persons. Established by the American Bar Association in 1978, the Commission has sought to improve legal services for the elderly, particularly through involvement of the private bar, and has explored legal issues surrounding health care, long-term care, surrogate decision-making, individual rights, guardianship, housing, Social Security, and other public benefit programs. The 15-member multi-disciplinary Commission includes lawyers, judges, physicians, professors, aging network leaders, and advocates for older persons.

Table of Contents

Executive Summary

I. Introduction: Aging, Disability and Dispute Resolution

II. Forging A Path: Four Pilot Projects

III. Building Coalition: Thirteen Tenets

Bibliography

Appendix
A: Brochures

Appendix
B: Meeting/Conference Agendas

Appendix
C: Training Materials

Appendix
D: Articles in the Press and Professional Publications

Building Coalitions in Aging, Disability and Dispute Resolution

I. Introduction: Aging, Disability and Dispute Resolution

A nursing home resident with Alzheimer’s Disease is accused of physically attacking staff members and other residents. The nursing home notifies the resident and her family that she must leave the facility. Angry and upset, the daughter complains that the facility has ignored her mother’s urinary problems, lost her dentures, and failed to monitor her medication. She has no alternative placement for her mother.

A man with a hearing impairment requests real-time, open captioning of county board meetings. The county balks at the cost.

An elderly woman requested and received payment for a wheelchair from a Medicaid managed care plan. But the wheelchair was the wrong fit and with the help of community advocates, the woman complained to the health plan and eventually received a different wheelchair. She now charges that the first wheelchair made her condition irreparably worse. The plan staff say they took appropriate action and did the best they could.

A downtown apartment building provides subsidized housing for the elderly and younger people with disabilities. Tensions between residents erupt regularly. Older residents complain that the younger people disturb them with loud music and late-night visitors, and that they are using drugs. Younger residents say that the elderly complain about them unfairly to management, stare at them, and make hostile comments.

A. Why Focus on Aging and Disability?

With the “graying of America” and the increasing incidence of disabilities, conflicts like these will multiply. In 1998, individuals age 65+ in the United States numbered 34.4 million, and represented 12.7% of the population – about one in every eight Americans. By 2030, there will be about 70 million older persons, more than twice their number in 1998, and they will represent 20% of the population. Moreover, the older population itself is getting older, with the number of “old old” age 85+ soaring (U.S. Administration on Aging, 1999).

About one in five non-institutionalized Americans (19.4% of the non-institutionalized population, totaling 48.9 million people) have some kind of disability, and one in ten have a severe disability (National Institute on Disability and Rehabilitation Research, 1996). The likelihood of having a disability increases with age. In 1996, over one-third of older persons reported they were limited by chronic conditions. In 1994-95, more than half of the older population reported having at least one disability, and one-third had at least one severe disability (U.S. Administration on Aging, 1999).

With the growth of these populations, there is a heightened awareness of their needs and the legal protections to which they are entitled. The Older Americans Act (42 U.S.C. §3001 et seq.), as well as age discrimination laws and government benefit programs for seniors, have focused attention on the elderly and elder rights. The passage of the Americans with Disabilities Act (ADA) (42 U.S.C. §12101 et seq.) in 1990 highlighted the rights of persons with disabilities and the myriad of issues affecting them.

Older people and people with disabilities often become involved in the same types of disputes as the rest of the population, such as consumer conflicts, landlord-tenant problems, and property disputes. But they also face a host of unique and often intractable problems. These include:

  • Disputes in high-density residences such as assisted living facilities, nursing homes, continuing care retirement communities, and senior housing (which may or may not incorporate housing for younger persons with disabilities)
  • Intergenerational disputes over estate planning, health and long-term care, and grandparent custody or visitation of grandchildren
  • Guardianship conflicts, often involving family dynamics
  • Health care conflicts, including bioethical disputes over end-of-life decision-making, and other care issues in both acute and long-term care settings
  • Managed care conflicts over denials, reductions or terminations of service, as well as issues of enrollment and disenrollment, quality of care, and liability for charges
  • Disputes over discriminatory treatment because of a disability, possibly in violation of the ADA
  • Special education issues involving appropriate educational plans and services
  • Policy issues on the federal, state and local level, involving, e.g., public benefits, accommodations, health and long-term care.

Dispute resolution resources offer great potential for assisting older persons and persons with disabilities in resolving this broad spectrum of conflicts in humane, lasting, expeditious, often empowering and cost-effective ways. “Dispute resolution” refers to “a broad range of mechanisms and processes designed to assist parties in resolving differences.” These mechanisms “interrupt the escalation …[and offer] the parties a structured, monitored framework to air and possibly resolve the dispute” (American Bar Association, ADR Primer, 1989). The key often is a neutral third party. Because the neutral has no stake in the outcome, the parties can trust the neutral to help them move toward agreement.

Mediation is one form of dispute resolution. It is a process in which a trained neutral third party enhances communication between disputing parties and acts as a catalyst for settlement. The mediator helps the parties to reframe issues, develop options, clarify choices and consequences, and reach mutually acceptable agreements. Mediation helps disputants to look for the real interests behind their stated positions. It may uncover hidden facts and issues that are key to resolving the conflict. It seeks to build and strengthen relationships in a “gain-gain” mode rather than destroying relationships in acrimonious “win-lose” conflicts. Solutions that emerge may be more tailored to individual needs than might be possible through traditional channels; and parties may adhere better to solutions they have designed themselves. It is important to preserve and strengthen traditional legal processes for vulnerable populations such as the elderly and persons with disabilities, with full due process rights ¯ and mediation is not a substitute. Yet mediation and other dispute resolution techniques in appropriate cases frequently offer preliminary channels for constructive and creative solutions.

The potential benefit of dispute resolution for the elderly was suggested by studies as early as 1980 (ABA Commission,The Coming of Age, 1988). In 1990, Congress drew attention to the potential efficacy of alternatives to litigation for persons with disabilities by encouraging dispute resolution mechanisms for ADA disputes (42 U.S.C. §12212). However, until recently there has been little linkage or communication between the burgeoning aging, disability and dispute resolution communities. Consequently, many problems affecting the lives of older persons and those with disabilities may fester unattended.

Cooperative education and collaboration among the aging, disability and dispute resolution movements could improve services and enhance the quality of life for these populations. Together, these groups could increase dispute resolvers’ knowledge about aging and disability issues and resources; accommodate aging and disability needs in the dispute resolution setting; and reach out to members of these communities who may be isolated and without resources.

B. What Has Happened So Far?

Initial efforts have begun to address these needs. Some have been spearheaded by national organizations such as AARP, the American Bar Association Commission on Legal Problems of the Elderly, and others (AARP, Stop! You’re Both Right, 1995).

Since 1986, the Washington, DC-based Dispute Resolution Coalition on Aging and Disability has sought to bridge the three networks. The Coalition has met to discuss specific substantive areas for dispute resolution, such as the ADA, grandparent visitation rights, and assisted living, as well as specific dispute resolution approaches, including mediation, community problem-solving, and regulatory negotiation. In 1995, the Coalition joined with AARP in sponsoring a national conference called “Collaborative Approaches: Disability, Aging and Dispute Resolution.” Nearly 200 aging service providers, disability advocates and dispute resolution practitioners gathered to share their successful projects and develop new working relationships.

Several large demonstration projects funded by major foundations have grappled with how to use mediation to resolve especially burdensome types of conflicts. With support from the United Hospital Fund, two New York City hospitals piloted the use of mediation to resolve bioethical disputes in the acute care setting (Dubler & Marcus, 1994). In a three-year project supported by The Commonwealth Fund and the AARP Andrus Foundation, the ABA Commission on Legal Problems of the Elderly tested a co-mediation approach to resolving care conflicts in nursing homes (ABA Commission,Keep Talking, 1997). Funded by The William and Flora Hewlett Foundation and others, and set in at least seven states, The Center for Social Gerontology has piloted the use of mediation to resolve guardianship conflicts, which often are intra-family conflicts amenable to out-of-court alternatives (Hartman, 1996).

Health care dispute resolution has come to the fore over the past few years as a particularly critical issue for the elderly and people with disabilities. The Rand Institute for Social Justice has examined arbitration of managed care disputes (Rolph, 1997). The ABA Commission on Legal Problems of the Elderly conducted an in-depth study of how managed care organizations resolve consumer disputes internally (Karp & Wood, 2000). Recent efforts have examined the use of dispute resolution techniques in disputes between medical product manufacturers and medical providers, intellectual property disputes over high-tech medical equipment, physician disputes with hospitals and health plans, hospital staff disputes, patient-physician disputes (Marcus et al, 1995; Cronin-Harris et al, 1993); and external review for health plan-member conflicts (American Arbitration Association et al, 1998).

C. Why Focus on the State and Local Level?

The ABA Commission on Legal Problems of the Elderly, AARP and others have sponsored scattered dispute resolution symposia and local pilot projects in several states. For instance, the AARP Consumer Affairs section provided seed money for the Dispute Resolution Center of St. Paul, MN to provide education and mediation services to residents of senior housing complexes. The ABA’s Marie Walsh Sharpe Endowment helped Kansas Legal Services of Olathe offer mediation to seniors and train older adults as mediators. More recently, the ABA Commission on Legal Problems of the Elderly and The Borchard Center on Law and Aging have funded Susquehanna Legal Services in Pennsylvania to work with the Montgomery County Mediation Center and others to design and implement an elder mediation project in a rural setting.

To date, however, most efforts to bring together the aging, disability and dispute resolution networks have occurred on the national level. To increase dispute resolution options for real people, state and local collaborators must pick up the ball. Key aging and disability players must work with the dispute resolution community to test conflict resolution techniques, adapt them to local needs and resources, and reach out to particular populations. With the objective of moving from global to local, the ABA Commission on Legal Problems of the Elderly thus began a new initiative in 1998 to create pilot projects as a springboard for the development of other local, regional and state efforts. This publication reports on the ABA pilot projects, and identifies steps to create working coalitions among the three networks.

II. Forging A Path: Four Pilot Projects

In 1998, the American Bar Association Commission on Legal Problems of the Elderly received funding from The William and Flora Hewlett Foundation to promote the integration of conflict resolution in the aging and disability fields. Through the grant, the ABA Commission aimed to initiate the development of four state or regional coalitions on aging, disability and dispute resolution. The objectives of the coalitions were to:

  • Increase communication and collaboration among the aging, disability and dispute resolution networks
  • Educate each network about the needs and resources of the others
  • Develop a state/regional dispute resolution agenda by and on behalf of the elderly and persons with disabilities
  • Explore the use of collaborative approaches to formulate state policy on critical issues for the aging and disability communities.

Early in 1998, the ABA Commission convened an interdisciplinary Advisory Committee. With the help of the Advisory Committee, the ABA Commission drafted and distributed a request for proposals for mini-grants to develop coalitions on aging, disability and dispute resolution. The ABA Commission selected four grantees for 18-month projects, to serve as models for replication in other areas:

  • The Dispute Resolution Center of Central Montana, Bozeman, MT
  • The Montgomery County Mediation Center, Norristown, PA
  • Just Solutions, Louisville, KY
  • The Institute for Advanced Legal Studies, Elder Law Institute
  • University of Denver College of Law

The ABA Commission compiled training materials for these coalition-building projects, and made site visits to provide technical assistance. The ABA Commission also developed a listserve to encourage communication among the grantees and others interested in their objectives. (For information about this listserve, e-mail collaborate@mail.abanet.org, or contact the ABA Commission at elderly@abanet.org.)

The following profiles of each of these four imaginative projects may help to forge a path for others. Commonalities and lessons learned from these pathfinding efforts are summarized in Chapter III.

A. Dispute Resolution Center of Central Montana

In September 1998, over 25 representatives of the aging and disability communities met in the Bozeman Public Library. The Dispute Resolution Center led a lively discussion and brainstorming session centered around the following questions: Do you see a place to integrate dispute resolution into your programs? How can the Dispute Resolution Center be a resource to your group? That meeting made new links and kicked off an innovative coalition-building effort.

1. Who Were the Players?

  • Lead agency: The Dispute Resolution Center of Central Montana (DRC). The Dispute Resolution Center of Central Montana is a private, non-profit organization that was established in 1996. It is dedicated to providing quality, affordable dispute resolution services and education about dispute resolution processes. It has a nine-member board and a part-time contracted staff person. At the inception of the project, the DRC had 23 volunteer mediators.
  • The Human Resources Development Council – a local agency that served as a key link to the aging and disability communities, including the Area Council on Aging and the Montana Gerontological Society.
  • The Coalition for People with Disabilities
  • REACH, Inc.
  • The Retired and Senior Volunteer Program (RSVP)
  • The local long-term care ombudsman, under the Older Americans Act
  • The state legal assistance developer in the Senior and Long Term Care Division of the Montana Department of Health and Human Services
  • The Gallatin County Council on Aging
  • Senior centers in Gallatin, Meagher and Park Counties

2. What Did the Project Do?

  • With the Human Resources Development Council, DRC prepared a presentation to explain the objectives of the project and the use of mediation in issues affecting the elderly and persons with disabilities (Appendix B). This presentation included use of the AARP video,Stop! You’re Both Right.
  • As part of the ABA Commission’s technical assistance visit, DRC arranged for a presentation on aging and disability issues to the members of the Montana Bar Association Section on Dispute Resolution.
  • DRC sponsored a meeting of 25 local leaders in the aging and disability fields on potential uses of mediation.
  • The project convened a session for volunteer mediators (with the ABA Commission) on aging and disability issues, including a nursing home role play.
  • The project provided in-depth training for its volunteer mediators on aging and disability issues and resources (Appendix C).
  • The project arranged for five of the DRC volunteer mediators to participate in Adult Guardianship Mediation Training by The Center for Social Gerontology.
  • The project gave a presentation to the directors of the state’s 14 area agencies on aging, and requested their input.
  • The project developed and printed 3000 brochures on “Mediation: A Problem-Solving Resource for Seniors, Persons with Disabilities, Their Families, Caregivers and Service Providers” (Appendix A).
  • With the director of the local RSVP, the project explored training opportunities for RSVP volunteers to become trained mediators with DRC.
  • The project made presentations to local service clubs (Rotary, neighborhood associations, and other service groups). This laid the groundwork for presentations to senior centers and other community organizations.
  • The project discussed the development of a joint referral process with the ombudsman at the senior center.
  • The project made a presentation to the Montana Gerontological Society Planning Meeting.
  • The project established a liaison with the Gallatin County Council on Aging.

3. What Were the Challenges?

  • Finding the key coalition members. Partnering with the Human Resources Development Council was the key to a wide range of aging and disability connections.
  • Identifying resources to maintain the project.

4. What Other Sources of Funding Did the Project Seek?

  • Sought funds for senior volunteer mediation training from a regional foundation.
  • Used in-kind resources, including approximately 50 hours of time donated by DRC volunteer mediators; 20 hours of time donated by the Human Resources Development Council; and the cost of postage and copying, donated by HRDC.

5. What Was the Outcome?

  • The project established key links and referral systems that will continue.
  • The project is seeking to identify support for a coordinator/director position to follow through on this work.

B. Montgomery County Mediation Center: Problem Solving Resources for Seniors

Roommates Morris and Ed don’t get along. One is neat and the other throws clothes all over the room. They like different TV shows. Morris finds Ed antisocial, and Ed complains Morris is inconsiderate and uninformed. “And their situation is exacerbated by the confined space they share at the nursing facility. Both believe they are right and badly want to resolve the problem, so they turned to mediators to sort it all out. [This scene was] part of the performance of the Roving Resolution Role Players, a group of senior citizens and volunteers working through the Montgomery County Mediation Center. While the performance garnered its fair share of laughs from the audience, the message it delivered was serious: finding ways for the elderly to resolve the conflict in their lives” (Akers, Ted. “To All Odd Couples, A Lesson in Conflict Resolution, Montgomery Life, Sept. 22 – Oct 1, 1998).

  • Lead agency: Montgomery County Mediation Center. The Montgomery County Mediation Center (MCMC) is a non-profit agency that was incorporated in 1986 to provide mediation and community education. At the inception of the project, MCMC served approximately 1500 individuals per year.
  • The Retired and Senior Volunteer Program (RSVP) of Montgomery County
  • Montgomery County Aging and Adult Services
  • Montgomery County Legal Aid Services
  • Abington Hospital’s Elder Help Program
  • Montgomery County Bar Association’s Elder Law Committee
  • North Penn Senior Center
  • Souderton Mennonite Homes
  • Center for Advocacy for the Rights and Interests of the Elderly (CARIE)

2. What Did the Project Do?

  • The initial step was a needs assessment conducted by an RSVP volunteer to determine if conflicts involving community seniors might benefit from mediation. The volunteer interviewed representatives from the local long-term care ombudsman program, the area agency on aging, legal services, the bar association’s lawyer referral service and others.
  • Three coalition members emerged from this initial needs assessment – RSVP, Montgomery County Aging and Adult Services, and Legal Aid.
  • MCMC and its partners then formed a committee comprised of seniors and experienced mediators. The committee met regularly and identified an MCMC staff member as coordinator. The underlying thrust of the committee and the project was “empowering seniors to help other seniors.”
  • MCMC provided mediation training to any seniors on the committee who were not previously trained. The project established a co-mediation model, and this was helpful in mentoring.
  • The committee identified prospective coalition members by creating a list of contacts in the aging and legal fields. (Note: This project did not include the disability community.)
  • The committee created a brochure (Appendix A) with information gathered from the needs assessment.
  • The committee sent invitations and brochures to the list of prospective coalition members, and followed up by phone.
  • This effort produced a number of committed members for the coalition (see above).
  • The coalition continued with both formal meetings and informal dialogues, engendering trust and building referral systems. MCMC offered complimentary mediation training to coalition members, and used coalition members as presenters on aging issues and resources. MCMC invited two senior volunteers to serve on its Board of Directors.
  • The project formed the “Roving Resolution Role Players.” This group provides mediation demonstrations and skits on problem solving. Coalition members have invited the group to perform for their clients, staff and volunteers. The project produced a mock mediation video to use in educational presentations.
  • The project produced a feature story on mediation and elder law for theLitigation Quarterly, a widely read law publication in Pennsylvania (Appendix D).
  • The project has given a wide range of community presentations and training to the bar association, senior centers, mediation groups, hospital hotline staff, assisted living residents, and attorneys.

3. What Were the Challenges?

  • One challenge was adapting mediation practices to the needs of seniors. Cases involving elderly parties often require more time during intake. Sometimes mediations are held at convenient locations, including the senior’s home. The cases frequently are complex, involving health and social issues that require careful screening, phone consultations and referrals to community services. MCMC made adaptations. For example, MCMC agreed to have volunteers make calls from their homes, which is not a general practice and established policies to protect confidentiality.
  • An additional challenge was obtaining fees for mediation services. Many elderly are on fixed incomes. The project therefore sought additional funding and waived fees for seniors unable to pay. A particular problem arose with disputes between long-term care facilities and residents in which the facility was able to pay, but the resident was not. In one instance, the facility appeared to expect the mediator to advocate for its position. Thus, MCMC reiterates during intake that the mediators are neutral despite payment arrangements.

4. What Other Sources of Funding Did the Project Seek?

  • Mediator fees, when possible (waived if an elderly party is unable to pay)
  • The Montgomery County Bar Foundation
  • Partner in project of Susquehanna Legal Services (through the Partnerships in Law and Aging Program, sponsored by the ABA Commission and the Borchard Foundation Center on Law and Aging)
  • In-kind donations of volunteer time, space for trainings, and refreshments
  • Training fees.

5. What Was the Outcome?

  • Shared information among coalition members has led to greater understanding of available services and needs (Appendix D).
  • The project was replicated in a rural community in Western Pennsylvania. In connection with this, MCMC compiled a manual of materials for setting up a mediation program for seniors (Mediating Conflicts Involving Senior Citizens: A Resource Manual).
  • As a result of the project, MCMC was asked to provide conflict resolution training at the state long-term care ombudsman conference in May 2000. MCMC led over five hours of lecture, large and small group exercises and role play demonstrations for paid and volunteer ombudsmen.
  • Since the inception of the project, MCMC has provided greatly increased services to seniors. Since January 1998, these have included: 31 inquiry responses; 13 mediation sessions; 24 phone consultations; one consultation in an assisted living facility; and seven client-centered planning sessions for two cases involving nursing home residents.
  • The types of disputes involving seniors that have been referred to MCMC include: landlord-tenant, employment, property, nursing home issues, family conflicts, estate issues, neighborhood disputes, divorce, financial management/control and grandparent visitation. For example:
    • A visiting nurse contacted MCMC about two elderly sisters who had lived together for many years. Their communication was decreasing, and the resulting tension exacerbated health problems for both. Two mediators uncovered complex issues including unresolved grief, loneliness and feelings about how they communicated. The sessions produced improvement in the tension level. The mediators also connected the sisters with community resources.
    • A 40-year-old nursing home resident with a disability contacted MCMC concerning ongoing conflicts with staff. Two mediators met twice with the resident, the facility social worker and a nurse and worked out ways to improve communication and help the resident set goals toward an independent living situation.
    • An assisted living facility was troubled about conflicts between residents who were clients of a geriatric mental health program and other residents and staff. The mental health clients felt ostracized within the community. The social worker and the director of the facility also had conflicts. Two mediators from MCMC met with the social worker, facility director and residents. This resulted in a workshop on dealing with conflict, attended by approximately 35 residents and staff. Mediation between the social worker and director was held separately.

C. Just Solutions

Dosker Manor is the largest public housing complex in Kentucky that provides housing to both the elderly and persons with disabilities. At the inception of the project, Dosker Manor’s population was comprised of 60% elderly and 40% younger persons with disabilities. Tensions were often very high and residents were not participating in programs offered on site because of the conflict and fear between the two groups. This presented a challenge for Just Solutions Mediation Service.

1. Who Were the Players?

  • Lead agency: Just Solutions Mediation Services. Just Solutions is a non-profit community-based center for mediation training and mediation services.
  • Dosker Manor Housing Complex management
  • Dosker Manor Housing Complex resident representatives
  • U.S. Department of Housing and Urban Development. HUD provided a three-year demonstration grant to integrate the elderly and the younger residents with disabilities at Dosker Manor.
  • ElderServe, Inc., the key agency in the national HUD demonstration project at Dosker Manor.
  • Housing Authority of Louisville. The Housing Authority was a partner in the HUD grant, and provided local funding for the SIT-UP (Supporting Independence Through Unity and Pride) Council.
  • SIT-UP Advisory Council of Dosker Manor. This coalition, developed under the HUD grant, included a broad collaboration of agencies (as listed here) working together to enhance the sense of community and reduce conflict among the over 600 residents of Dosker Manor.
  • MAGIC (Making a Great Independent Community). MAGIC was formed by a committee of residents who joined together to improve the quality of life at Dosker Manor.
  • St. William Center, Inc. Seven Counties Services
  • Visiting Nurse Association
  • Jefferson County Nutrition Program

2. What Did the Project Do?

  • The SIT-UP Council, through the grant from HUD, was designed to alleviate tensions between the elderly and younger residents with disabilities at Dosker Manor. The Just Solutions project built a dispute resolution component into this overall effort.
  • Just Solutions provided basic training on dispute resolution and mediation to 19 Dosker Manor staff and residents. This included scholarships for two residents and two staff for a three-day training.
  • Just Solutions mediators facilitated a mediation role play at a Dosker Manor meeting with approximately 65 residents present.
  • With the help of Just Solutions, a “town hall meeting” was held at Dosker Manor to discuss programs and community involvement, and residents’ visions of what they would like to see happen at Dosker Manor.
  • Just Solutions held a continuing education program for 20 mediators on“Mediating With the Elderly and Persons with Disabilities.” The focus was to prepare for a proposed mentoring program with Dosker Manor trained mediators.
  • Just Solutions surveyed MAGIC residents, and facilitated a day-long retreat with MAGIC board members.

3. What Were the Challenges?

  • A primary challenge was getting the word out to residents about mediation, and getting them to use it. ElderServe’s monthly newsletter for residents has included information about mediation. New residents receive a flyer describing mediation and the manager of Dosker Manor gives flyers to residents who make complaints concerning other residents; the manager sometimes makes referrals.
  • Another challenge was the difficulty some residents had in understanding the mediation process. Frequent explanations on a one-to-one basis, in clear and simple terms, has helped.
  • The issue of whether residents should be asked to pay fees has not been decided. During the project, SIT-UP funds were used to pay for mediation sessions.

4. What Other Sources of Funding Did the Project Seek?

  • Just Solutions contributed three training scholarships ($1050), the facilitated mediation role play ($200), and facilitation of the MAGIC retreat ($1600, including $500 paid by MAGIC).
  • Just Solutions sought but did not receive a Kentucky IOLTA (Interest on Lawyers Trust Accounts) Fund grant.
  • Through a Metro United Way Vital Neighborhoods Venture Grant, Just Solutions, Dosker manor residents and staff, and ElderServe staff have entered into another partnership.

5. What Was the Outcome?

  • Thus far, the project has conducted two inter-agency mediations; and three mediations between Dosker Manor residents. In addition, residents who attended the Just Solutions training have reported using mediation skills on an informal basis.
  • Just Solutions, the SIT-UP Council, and the residents of Dosker Manor have become integral team members. Just Solutions, residents of Dosker Manor (and three other communities) have received funding to create HOOP (Handling Our Own Problems), through which residents will learn problem solving skills, how to conduct community meetings, how to resolve conflicts and how to help talk about disagreements.
D. The Institute for Advanced Legal Studies, Elder Law Institute, University of Denver College of Law

On October 1, 1999, over 60 representatives of the aging network, disability community and dispute resolution system in Colorado gathered at the University of Denver College of Law for an interactive conference opened by the state’s Chief Justice. Over the course of a day and a half, they forged new ties and developed a new understanding of issues, needs and resources.

1. Who Were the Players?

  • Lead agency: University of Denver, College of Law, Institute of Advanced Legal Studies, Elder Law Institute. The Elder Law Institute was organized in 1993 under the auspices of the Institute for Advanced Legal Studies. The mission of the Institute is “to enhance the understanding of legal and other issues facing the elderly and disabled.” The Institute’s agenda is determined by a 20-member advisory board consisting of attorneys from the public and private bar, social workers, representatives of aging service agencies, judges, physicians, bankers, health insurance providers and elder abuse prevention specialists.
  • Colorado Bar Association Alternative Dispute Resolution and Elder Law Forum Committees
  • Office of Dispute Resolution, Colorado Judicial Branch
  • Denver Regional Council of Governments, Area Agency on Aging
  • The Legal Center for People with Disabilities and Older People
  • University of Denver Institute of Gerontology

2. What Did the Project Do?

  • The objective of this grant was to hold a statewide conference on aging, disability and dispute resolution that could serve as the basis for coalition-building. The following steps were essential in planning the October 1999 conference:
  • Members of many of the above groups originally met to respond to the ABA Commission’s request for proposals, determine the sponsorship of a conference to cross-educate the aging, disability and mediation communities in Colorado, and develop one or more follow-up pilot projects with a targeted aging/disability focus.
  • The planning group immediately saw a need to cross-educate themselves. Thus, they gathered and shared background information.
  • The planning group created a list of stakeholders concerned with aging, disability and dispute resolution. The group used the list to ensure that a variety of participants from many organizations were included in the planning process. Many people participated in the discussions that eventually led to the curriculum planning and speaker selection. This broad input was critical.
  • The planning group organized into five subcommittees: curriculum, pre- and post-conference issues, finance and fundraising, home health pilot, and long-term care facility pilot.
  • The planning group solicited and obtained additional funding (see below). The conference fee was set at $49, with the proviso that any extra funds from the conference would be used as seed money for pilot projects.
  • The group invited the Colorado Supreme Court Chief Justice to introduce the conference, and identified a keynote speaker through contacts with the ABA Commission.
  • The group invited additional speakers for basic workshops (Aging 101, Disability 101, and Dispute Resolution 101) in the morning of the first day of the conference. They also identified speakers for the issue-oriented workshops in the afternoon and the two coalition-building pilot project working groups on the second day. Planning group members divided up the workshops, so that each planning group member introduced and provided support to specific speakers.
  • The group mailed “Save the Day” announcements in April 1999 to individuals and organizations on mailing lists provided by the Denver Regional Council of Governments Aging Services, Senior Resources, The Institute for Advanced Legal Studies, and various mediators. A “Save the Day” ad was printed also in the Colorado Bar Association ADR Committee newsletter.
  • The conference, held on October 1 – 2, 1999 at the University of Denver College of Law, drew over 60 attendees. All of the breakout sessions were well attended, with approximately 20 attendees per workshop (Appendix B).

3. What Were the Challenges?

  • Early on the planning group recognized a need to educate each other on their respective fields, and thus brought together materials and contacts. This was the start of coalition building.
  • The group required additional funding to cover conference costs (see below).
  • Conference follow-up has been difficult. Maintaining an ongoing coalition requires further contributions of time and resources.

4. What Other Sources of Funding Did the Project Seek?

The project solicited and obtained funds from the following entities:

  • Colorado Mediation Foundation ($250)
  • The Elder Law Forum Committee, Colorado Bar Association ($500)
  • Alternative Dispute Resolution Committee, Colorado Bar Association ($500)
  • The Institute for Advanced Legal Studies, University of Denver College of Law (substantial in-kind support)
  • Conference fees ($49 per attendee)

5. What Was the Outcome?

  • Conference planners and attendees were successful in cross-educating each other on the intended issues. Conference evaluation forms showed that participants were introduced to and learned about issue areas and needs, and resources that were new to them. The conference initiated valuable links that were not there before.
  • The 200+ pages of conference materials are a valuable resource for coalition building and training in Colorado.
  • Two groups, one on home health issues and one on long-term care facility mediation, showed interest in follow-up. Thus far, the long-term care group has convened and has begun working on developing a pilot project.

III. Building Coalition: Thirteen Tenets

What are the ingredients of success in drawing together the aging, disability and dispute resolution networks and building an ongoing coalition? What creates the momentum? What are the hallmarks of a project that will truly integrate conflict resolution into the aging and disability fields? The ABA Commission pilot projects demonstrated many of the key approaches summarized below. Taken together, these “thirteen tenets” can spark creative new links, and make the dispute resolution process a life-enhancing and empowering experience for older persons and persons with disabilities.

1. Start Small.

Form a core steering committee to build a base. In Montana, this core included the Dispute Resolution Center, the Human Resources Development Council, and the Coalition for People with Disabilities. In Pennsylvania, it included the Mediation Center, RSVP, Aging and Adult Services and Legal Aid. Trade initial perceptions and build trust before moving into the broader aging, disability and dispute resolution communities.

2. Involve seniors and persons with disabilities in all aspects of the project.

Their active input all along the way will bring vitality and ensure your coalition is really on track. A group comprised only of staff will not be a true coalition and will not have the empowering aspects of an interactive group. Start with older persons who can share their lifelong skills and individuals with disabilities who can bring their vision to bear. Groups that include professionals and volunteers can draw out the best in both.

3. Meet regularly; cross-educate.

Regular meetings will give shape and structure to your project. Meetings will offer the opportunity for both formal and informal dialogue. Bring in a variety of speakers to fire the imagination and trigger the flow of ideas. Recognize that step-by-step, cross-education of coalition members is a necessary early step – and an enjoyable one. Often, lunch can be the key to success. Lingering over lunch may turn into helpful brainstorming and trading of useful information. Nurture relationships and expand slowly.

4. Provide mediation training.

A salient feature of success in each of the pilot projects was that the mediation program offered training to volunteers and other non-mediator coalition members. This expands the pool of mediators and can bring a “peer mediation” aspect for older persons and persons with disabilities. It dramatically raises the level of enthusiasm and commitment. It may result in a co-mediation model in which new trainees are paired with and mentored by experienced mediators. This is a good trade in which the experienced mediator models dispute resolution skills, while the trainee brings a helpful knowledge of aging and disability.

5. Reach out to the aging and disability communities.

In targeting broader coalition partners, look to the state and area agencies on aging that make up the backbone of the aging network under the Older Americans Act. Include or contact their advisory councils and local service providers. Be aware that the long-term care ombudsman program, insurance counseling program, legal services and elder abuse prevention program make up a vibrant elder rights system that may have a role or offer useful resources.

Target local aging organizations that have direct channels to older persons in the region – AARP chapters, state or local aging coalitions and grassroots clubs sponsored by recreation departments and churches. Reach out to senior or retiree groups – the RSVP, chapters of the National Association of Retired Federal Employees and professional retiree groups. Contact long-term care providers – nursing homes, assisted living facilities, and independent living facilities.

Look to the state and local bar association. Most state and some local bar groups have sections or committees on the elderly. Many have disability law committees. Many have senior lawyer sections. Retired or semi-retired attorneys and judges may have a special interest in mediation. Often, bar associations also have dispute resolution sections – yet these sections may not have liaisons with bar association aging or disability groups.

Collaborate with disability agencies and advocates. Look to the state protection and advocacy agency established by federal law, as well as to the state “client assistance program,” vocational rehabilitation programs, developmental disabilities councils, state and local commissions on aging and offices on disability, independent living centers, and the wide range of disability groups. Many organizations focus on the needs of individuals with specific disabilities – vision, hearing, retardation, or specific chronic conditions. They can provide valuable information on ways to accommodate these needs. Identify state and local “ADA coordinators” to encourage compliance with the Americans with Disabilities Act.

6. Develop and mail brochures; Hold a community meeting.

Once the core steering committee has solidified, and has developed a list of aging, disability and dispute resolution resources, put together a brief flyer or brochure setting out project objectives, explaining mediation and giving contact information. Mail the brochure to the full range of aging and disability entities, as described above and to mediators, bar association dispute resolution sections, and other professionals in dispute resolution.

When ready, reach out to this larger community by sponsoring a forum to introduce the benefits of mediation in resolving common aging and disability disputes. This forum can be the turning point, expanding the core planning group to a true coalition. Invite all the groups on the mailing list, and make personal follow-up calls to ensure attendance. Contact the press. Arrange an agenda that mixes formal speaker presentations with open-ended time for brainstorming and dialogue. Aim to come out of the meeting with a series of action steps.

7. Engage in effective outreach techniques.

Getting across the idea of dispute resolution to the aging and dispute resolution community is a challenge. Individuals may be reluctant to recognize or use mediation because they don’t know about it, don’t understand it, are not used to it, don’t trust it – or feel it may compromise their rights. The pilot projects and earlier efforts have shown that one-on-one informal contact works best. Try some of these techniques:

  • Use seniors and persons with disabilities to promote the project. Encourage volunteers to talk one-on-one with friends, relative, neighbors and colleagues; recognize that their message may be heard differently than the same message from program staff.
  • Have a regular presence at key locations such as senior centers, independent living facilities, group homes, or clubs. Target a wide variety of sites, and train personnel in housing sites and social services to make referrals to mediation.
  • Include success stories and role plays as part of the outreach. In Pennsylvania, the Roving Resolution Role Players engaged the attention of audiences in understanding exactly how mediation works. Mock mediations can also involve members of the audience, encouraging experiential learning about the stages of mediation and the kinds of disputes that might be addressed. Another technique is to show the AARP video “Stop! You’re Both Right,” which features three lively mediation case studies.
  • Think about the words to use. Sometimes the terms “conflict” and “dispute” might be too strong. “Problem” or “issue” might work better. Avoid long words such as “conciliation” and avoid jargon. Ask “have any of you had a problem you couldn’t get solved?”
  • Use multiple media – posters, flyers, newspapers, broadcast materials, brochures in languages other than English, human interest articles, public service announcements, bookmarks, and notices in benefit checks or utility bills.

    8. Train mediators in aging and disability.

    Add components on aging and disability to mediator training curricula. Include sessions on the aging process, the range of disabilities, ageism and disability stereotyping, communication techniques, law-related issues (the Americans with Disabilities Act, the Older Americans Act, long-term care, guardianship, health care decision-making, fair housing, Medicare and Medicaid), and community resources. Knowing about community resources;transportation, in-home care, nutrition programs, care management, information and referral, adult day care;may help when disputants are considering options for resolution. Materials produced by the pilot projects, and publications listed in the bibliography may help in developing a curriculum. Use coalition members knowledgeable in aging and disability to teach the mediators.

    9. Use board memberships to strengthen links.

    Place an aging representative or a disability advocate on the board of the mediation center. This will help to ensure the needs of the elderly and persons with disabilities are recognized, and will serve to educate other board members. Place a mediator on the agency on aging advisory council or on the board of a disability organization. This will not only keep these networks apprised of dispute resolution resources, but may also contribute useful negotiation skills if the council or board is in conflict with other entities.

    10. Identify funding sources.

    Organizing a coalition incurs costs in staff time, training, materials and mailings. Expanding dispute resolution services to aging and disability populations may require funds for mediator time and modifications to enhance access. In looking for financial assistance:
    (a) have statistics on the local or regional aging and disability populations, and on current dispute resolution services for these groups; and
    (b) enlist older advocates and disability advocates, including volunteers, to approach funders. They may be more persuasive than mediation program staff in explaining the need. Involve a local foundation in your coalition, to bolster funding channels. Consider the following possible sources:

    • Bar association committees
    • Bar association foundations, including use of IOLTA (Interest on Lawyers Trust Accounts) funds
    • State, local and regional foundations
    • National foundations with an interest in any of the three fields
    • United Way
    • State dispute resolution offices
    • Conference fees (keep moderate and make provisions for waivers)
    • Mediation fees (keep moderate and make provisions for waivers)
    • In-kind and volunteer resources
    • Individual donations
    • Fund-raising events

      11. Target a comprehensive range of dispute resolution services.

      While the potential of mediation to address individual problems may be the centerpiece, recognize that the aging and disability populations also may benefit from negotiation skills training, facilitated consensus-building workshops, and resolution of multi-party policy disputes. A narrow focus on mediation may overlook the informal use of communication skills and mediation/negotiation techniques on a day-to-day basis that may enhance the quality of life. Ask coalition members for examples that demonstrate the project’s overall impact. Look for ways skilled dispute resolvers can use their experience to help address and untangle complex, often intricate and long-standing organizational conflicts that can affect large numbers of older persons or persons with disabilities¯disputes in long-term care practices, agency turf disputes about services¯or even conflicts between aging and disability populations over scarce resources or lifestyle issues in housing facilities.

      12. Ensure accessibility of dispute resolution services. Ensure that dispute resolution services are accessible and user-friendly for all populations, and that the services comply with the Americans with Disabilities Act. Enlist persons with disabilities to evaluate the mediation center’s offices and the provision of services. For example:

      • Check for needed changes in physical layout such as an accessible entrance, wide door to the office or conference center, clear directional signs, upgraded lighting and non-slip floor covering. Be prepared to hold sessions at homes, community centers or housing/long-term care facilities.
      • Consider technology/auxiliary aids for persons with hearing impairments, including the purchase of a text telephone (TDD). Identify sign language interpreters in the region.
      • Assess programmatic changes such as large print brochures, flexibility in scheduling sessions and breaks, greater use of telephone services when appropriate, and methods of familiarizing prospective parties with the mediation process in advance of the session. Be open to having support persons, but ensure that discussions are with the individual disputant.
      • Identify ADA checklists and have coalition members do a “walk-through.”

      13. Recognize autonomy and empowerment as key concepts.

      Encourage options that build on autonomy and empowerment in all phases of coalition building, in mediation training, and in mediation services. Make these the guiding principles. For example, the touchstone for the Pennsylvania pilot project was “empowering seniors to help other seniors.”

      Acknowledgments

      The authors gratefully acknowledge the outstanding contributions of the coordinators of the four cutting edge projects described in this report – Louise Forrest of the Dispute Resolution Center of Central Montana; Kathryn Mariani of the Montgomery County Mediation Center; Claudia Grenough of Just Solutions; and Jeanne Long, Elizabeth Kelly and Sally Ortner of the Elder Law Institute and Institute for Advanced Legal Studies, University of Denver College of Law. We also thank the staff and volunteers who worked to make each of these projects a success.

      We thank The William and Flora Hewlett Foundation and our project officer, B. Stephen Toben. We appreciate, as always, the contributions of Nancy Coleman, Director, ABA Commission on Legal Problems of the Elderly.

      Our advisory committee steered us in the right direction. Members included Sue Fryer Ward, Maryland Office on Aging; Linda Baron, (currently) National Association for Community Mediation; Scott Bradley, Mediation Network of North Carolina; Ellie Crosby, Atlanta Legal Aid Society; Fredie Kay, Massachusetts Office of Dispute Resolution; Peter Maida, Key Bridge Mediation; Kathryn McCarty, ADR Vantage, Inc.; Jennifer Simpson, President’s Committee on Employment of People with Disabilities; and Robert Hoffman, AARP.

      We thank Kristin Meyer, Editor, ABA Commission on Legal Problems of the Elderly, for her careful work; and Julie Pasatiempo, Office Manager, for keeping us on track.

      Naomi Karp and Erica Wood

      ABA Commission on Legal Problems of the Elderly

      List of Appendices

      Appendix A: Brochures

      1. “Who Cares? We Care,” Montgomery County Mediation Center.

      2.“Mediation: A Problem Solving Resource for Seniors, People With Disabilities, Their Families, Caregivers and Service Providers,” Dispute Resolution Center of Central Montana.

      Appendix B: Meeting/Conference Agendas

      1.“Dispute Resolution: Meeting the Needs of Older Adults and People with Disabilities,” agenda for the October 1999 statewide conference of the University of Denver College of Law.

      2. Outline of one-hour community presentation by Dispute Resolution Center of Central Montana; notes from September 1998 initial community meeting.

      3. “Aging with Autonomy: Mediation as a Resource for Seniors,” brochure and agenda for June 2000 conference of the Montgomery County Mediation Center.

      Appendix C: Training Materials

      1. “Mediator Information: Mediation Issues Regarding Seniors and People with Disabilities,” Dispute Resolution Center of Central Montana.

      2. “Mediation and the Elderly,” Mary Ceridan, Just Solutions handout.

      3. “Schedule ; Agenda for Em-Power Project Meetings,” (including case scenarios) April 2000, Montgomery County Mediation Center.

      4. “Advanced Mediation Skills Training: Mediating Conflicts Involving Senior Citizens,” June 1999, Montgomery County Mediation Center.

      5. “Intake Questions in Cases Involving Seniors,” Montgomery County Mediation Center.

      Appendix D: Articles in the Press and Professional Publications

      1. 1. “To All the Odd Couples, A Lesson in Conflict Resolution,” Montgomery Life, September 25 – October 1, 1998.

      2.Volunteers Train with the Pros,” The Daily Item, Monday, April 17,2000.

      3. “Does Mediation Work to Resolve Disputes Involving the Elderly?” Green, Carole, Litigation Quarterly: A Supplement to the Legal Intelligencer & Pa. Law Weekly, March 22, 1999.

The Commission on Legal Problems of the Elderly is dedicated to examining the law-related concerns of older persons. Established by the American Bar Association in 1978, the Commission has sought to improve legal services for the elderly, particularly through involvement of the private bar, and has explored legal issues surrounding health care, long-term care, surrogate decision-making, individual rights, guardianship, housing, Social Security, and other public benefit programs. The 15-member multi-disciplinary Commission includes lawyers, judges, physicians, professors, aging network leaders, and advocates for older persons.

Website: www.abanet.org

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