Helping Families Resolve Disputes without Litigation:
Dealing with the Incapacitation or Death of a Parent or Loved One

Barbara Bowen, LCSW

The benefits of using the Collaborative Approach to help families resolve legal disputes related to divorce has continued to gain acceptance and support of the legal community as well as the general public. Collaborative Practice has proven to be successful in providing a framework in which divorcing spouses can work together to resolve financial, parenting, and emotional issues in a way that meets each person's primary needs and interests and addresses the needs of their children, while helping families move forward post divorce in a responsible, respectful way. The Collaborative Practice team includes attorneys to provide legal support and information, mental health professionals working as coaches address emotional, communication and parenting issues, and neutral professionals to help the parties gain insight into the effect of various options they may consider.

Divorce is only one type of legal dispute that affects families. As the family life cycle continues, other family crises develop, often surrounding the illness, incapacitation, or death of a parent or other loved one. Adult children may face the difficult task of assessing when to intervene in an elder's life and parents may resist attempts by their children to assume a significant role in their care. Conflicts among siblings about parent care or decisions regarding division of a parent's estate can revive old family tensions which may be played out in a new context. Court may eventually resolve legal issues, but often this is with huge financial and emotional costs. Family relationships may be an unexpected and emotionally devastating casualty. Collaborative Practice can now be used as an alternative to court and can help families resolve disputes over property, inheritances, powers of attorney, gifts and health care directives in a way that respects each individual's needs, as well as their familial relationship.

The death or incapacitation of a loved one is a huge emotional event which often can feel like an emotional crisis for their children, regardless of their children's age. Most people now understand that grief is a process that involves intense and changeable feelings that include shock, denial, bargaining, anger, depression that often must be dealt with to reach resolution and healing. During the process of grieving, it is not uncommon to feel as though one has lost the ability to rely on the usual coping behaviors which help one function well. Making decisions and communicating them clearly can be very difficult when dealing with a highly charged emotional state within oneself or within others.

The loss of a parent or a parent's ability to function in a parental or self-sufficient role often also triggers emotional struggles between siblings. Latent feelings of favoritism, neglect, jealousy and power struggles can arise again and be played out in current issues related to how decisions are made, who is chosen to make decisions or in property division. Family members may have strong feelings regarding medical decisions or whether or not a parent is placed out of the home. Settling estates or making estate plans can have personal meaning far beyond the material settlement. How family members deal with these issues have life long repercussions.

Addressing legal issues using the Collaborative Practice offers families the assistance of trained professionals who assist them in working toward reaching mutual agreement rather than polarizing the issues and pitting them against each other, which so often can happen when parties use court to resolve differences. Collaborative practice requires commitments from the parties and the professionals to resolve their differences outside court. Parties and professionals agree to voluntarily produce all necessary information and to work toward developing the interests of each party in a solution focused framework.

In addition to reaching mutually satisfactory legal outcomes, Collaborative Practice emphasizes respectful communication. Mental Health professionals offer the clients the emotional support needed to face the difficult task of resolving conflicts with other family members at a time when they and other family members may be facing the internal confusion of adjusting to a significant loss. They work with family members to increase their ability to communication their needs and interests clearly in a way that others can hear. They are also available to assist family members in talking with each other about difficult emotional issues that may otherwise stand in the way of reaching settlement.

Family crises are often pivotal times in which decisions need to be made. The process of transitioning through crisis holds pitfalls, but also opportunities. How families deal with their particular crisis sets the stage for ongoing family relationships. Collaborative Practice offers family members the support needed to deal with the crisis and to arise at mutually satisfactory outcomes in a way that relationships can be preserved or deepened and that can have a positive effect on each person involved.


©2005-2012 Barbara Bowen, Chinn Street Counseling Center; all rights reserved.