Recently I mediated a case involving consolidated actions for collection of hospital bills and alleged fraudulent conveyance of real properties.
From the hospital’s perspective the dispute was simple: the hospital had rendered in-patient services to the now deceased elderly father of the defendants, his adult daughters. The daughter who was his authorized attorney in fact had refused to pay the uninsured portion of his care, and both daughters had placed assets which could have paid for his care beyond the hospital’s reach.
From the sisters’ viewpoint, the situation was complicated and fraught with emotion. They had been close to their father and were still grieving three years after his death. One sister had cared for her father for many years, and during the decline that lead to his hospitalization and, eventually, his death. She refused to spend down his assets which would have allowed Medicaid to pay for much of his care in an appropriate facility after Medicare benefits were exhausted. Instead, she wanted him released from the hospital so she could care for him at home. The hospital declined to do so early on in the parties’ dispute because of its concern that she lacked proper training and equipment to care for him at home. Eventually, she was trained; he was then released to her care and he died at home. His hospital bills remained unpaid.
Complicating this scenario was the sisters’ devotion to their father. In a joint session, they explained that they had grown up together in one of their father’s properties, which was now vacant; that the caregiver sister had lived in a second of his homes with her husband and children until they moved to a new home, at which point the other sister and her three children moved into the father’s second property. The sisters, now co-personal representatives of their father’s estate, jointly owned both properties, which were not included in the estate as they had been conveyed to the sisters before their father’s death. The sisters were adamant that they did not want to risk losing these homes by putting their value into the mix for resolving the suit with the hospital. The estate had very little money in it. Neither sister had other assets to contribute toward settlement. Both had poor cash flow.
The hospital saw the sisters’ position as intransigent, based solely on emotion, and lacking in logic. However, the hospital’s representatives politely and empathetically assured the sisters that the hospital had no interest in making them homeless. That considerate attitude gave the sisters permission to reveal the interest underlying their position: their father had worked hard as a boiler maker and had saved his modest earnings so they could live comfortably. He never wanted them to lack for anything, and he viewed these properties as their future safety net. He stressed that they should keep the properties in the family. His daughters had expressed their gratitude to him. Now they wanted to remain loyal to him. Hence, viewing the properties—even the vacant one– as an asset that could be put toward settlement was inconceivable. Doing so would dishonor his memory, they insisted. Plus, they blamed the hospital for delaying his discharge to their care, thus increasing their financial obligation.
During a private caucus I asked the sisters whether they felt they were given ample opportunity to participate during the joint session. They confirmed that they had, but remphasized that their need to carry out their father’s wishes remained paramount. Several hours of mediation had left them distraught. They reiterated their desire to be guided solely by their father’s desire. Long before he fell ill, he had expressed his concern for their future well-being; he knew they had experienced financial difficulties. He believed these two houses would provide them with a financial cushion.
Put another way, the sisters were stuck in the belief that the only solution they could consider was one which honored their father’s wishes precisely as he had expressed them. This narrow interpretation of his need, and theirs, was quickly driving them to impasse. Their frustration and distress were obvious.
The daughters needed a “reality check” to enable them to negotiate with dollar figures within a range which would be acceptable to the hospital. Counsel invited me to speak with them in his presence. I offered my condolences, and asked them if they might consider their father’s wishes in a different way: he had loved them dearly and would not have wanted them to incur the extreme stress, rising litigation costs, and the delay and uncertainty associated with trial that they presently were experiencing. Moreover, they had portrayed him as a practical, logical man. He would not have wanted them to risk losing both family homes through an adverse outcome at trial. Perhaps, I said, they could consider that they would still be honoring his memory and following his desires by putting the value of the empty property toward resolution of this case, which had become all-consuming and detrimental to their emotional and financial health. Above all, I said, he would not have wanted them to suffer as they were.
I left them alone with counsel and returned to the joint session room. Eventually, their attorney emerged and negotiations resumed. The sisters were too upset to participate, but had authorized counsel to continue on their behalf. Ultimately, the matter settled and when the sisters returned to the table, their relief was palpable. The stridency of their opening position had melted away.
I don’t know, of course, what transpired in their private caucus after I left. I do know, though, that the sisters came to believe that their underlying needs could be met without dishonoring their father. To their own satisfaction they had successfully reconsidered what form that honor would take.
When you are fully immersed in mediation every day, it's easy to underestimate how strongly some people feel about it - take for example Harvard Law School's Peter Murray and...By Geoff Sharp