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Informal Mediation – Management of Intra-Family Disputes During the Last Stages of Life

The COVID-19 pandemic has wrought many changes, not the least of which has been a prevalent increase in emotional stress. We have also become more acutely aware of the precariously thin line separating a healthy life from an unexpected end-of-life scenario.

While we thankfully appear to be emerging from the worst of the pandemic, our appreciation for not only the preciousness but the quality of life ought to guide our approach toward how we support individuals in their Last Stages of Life (LSL individuals) and their family members, in coping with the exacerbated issues that can arise in such a fragile and tense situation.

A critical element of this multifaceted approach ought to be the provision of informal mediation services to support both LSL individuals and their families. Whether through access to a private, informal mediator in a home-based setting or as a dedicated service offered by health care facilities to residents, informal mediation would be of invaluable assistance in enabling LSL individuals to live out their remaining days in a peaceful environment, unencumbered by unnecessary tension and conflict.

The Law Commission of Ontario recently recognized the increased stress and propensity for conflict in an LSL context:

“Death, dying and bereavement are highly emotional and important experiences for everyone involved… Conflicts in the last stages of life may revolve around health care decision-making, a preference for treatment, or concerns about the quality of care being provided.” ¹

To these health care-related issues, I would add conflicts concerning financial issues, which often arise from disagreements over health care alternatives.

These health care and financial issues — already challenging in the pressure cooker of a LSL situation — are frequently exacerbated by latent resentment amongst family members, including the LSL individual. If not addressed, disputes over health care and financial issues may trigger further intra-family hostility (and litigation) after the LSL individual passes away. This is not the legacy most LSL individuals would wish to leave.

While this seems obvious, there remains a clear need for the cultivation and deployment of informal mediators to support both LSL individuals and their families.

In the next article, we will examine the practical implementation of informal mediation, as well as other currently-available avenues toward resolution of disputes in the LSL context and why informal mediation is by far the preferable choice.

¹ Law Commission of Ontario, Final Report dated October 2021, p. 82
 

Informal Mediation: Management of Intra-Family Disputes During the Last Stages of Life – Part 2

In our last article, we introduced the idea of informal mediation as a means toward managing and resolving disputes amongst family members during an individual’s last stages of life (LSL).

From a practical perspective, it is envisioned that a roster of experienced mediators, drawn from both the health care and legal milieus, will be cultivated and deployed as a critical service. The assistance of an informal mediator will be offered both to family members in private, home-based settings (as more individuals are choosing to live out their final days at home) and promoted as a dedicated service to palliative care residents (and their families) in long term care facilities.

The importance of informal mediation services in an LSL context is amplified when considering the alternatives. Currently, when disputes cannot be resolved through agreement (whether these conflicts relate to personal health care matters or financial issues concerning an LSL individual and his or her family members), practically speaking the only options are to march off to court or, where applicable, to commence a proceeding before the Consent and Capacity Board (CCB).

These are not satisfactory alternatives. Court proceedings (and, perhaps to a lesser extent CCB proceedings) are unwieldy, time-consuming, prohibitively expensive, consequently impractical, and, more often than not, emotionally traumatic to the LSL individual and his or her family members.

Both litigation and CCB proceedings are by their very nature adversarial, and often serve to exacerbate, rather than resolve conflicts involving LSL individuals and their family members. Consider also that, particularly in the context of court proceedings which often last for many months, an LSL individual may very well die before a final decision is granted – by a judge with no personal familiarity with the specific intra-family dynamics.

In contrast, informal mediation services can be provided on an expeditious, real-time basis — by experienced mediators who will meet with the LSL individual and his or her family members, become directly and sensitively familiar with the particular issues in dispute and the unique intra-family dynamics, and propose effective, appropriate and time-sensitive pathways toward prompt resolution of these issues.

Brian Belmont is a member of the Professional Advisory Committee with the Baycrest Foundation.

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