For the most part, in a negotiation, individuals will not be negotiating matters of life or death. Extreme examples of incidents where negotiations may in fact decide whether or not one will die include hostage negotiations, or cases where the consequences could hold maximum life-sentences or the death penalty. When most people negotiate, they attempt to solve their problems amongst themselves instead of having a court make a decision. The ideal result is to resolve the dispute in such a way that each party’s interests are satisfied. This favorable result is not always achieved.

Most people fail to recognize the grim circumstances that will inevitably affect every family: Death. Death is certain for everyone. For the well prepared, the family will have a mutually agreed upon direction of where to go and what to do after a loved one dies. Other families may have taken the extra step by creating an advanced directive or living will that explains what to do in a situation where the donor is in a vegetative state. Families must be prepared for a situation where a person becomes comatose. If a family has not created an advanced directive, disputes will ensue about what to do next. Because a comatose individual is without any cognitive functions, he or she cannot make any of these decisions. It is as if the individual is a silent hostage in his or her own body. This situation can occur with both the elderly and the young adult. Although it would cut down on litigation and save family strife, the majority of individuals do not create advanced directives or living trusts. Recent legislation in Estate Law has greatly influenced families’ decisions in whether to terminate or maintain life-sustaining treatment for their comatose family member. The way the law is constructed may breed grounds for elderly abuse and pre-mature death for the elderly in a comatose state.

This paper will explore how Americans negotiate end-of-life disputes. In particular, it will discuss the need for an effective approach to negotiation as a means of resolving end-of-life disputes compared to litigation. Collaborative negotiation is the preferred way to resolve end-of-life disputes because it provides for a more respectful environment to discuss the different interests of the disputing parties, allows for a quicker resolution, and the decision will remain confidential. The research will explain 1.) The specific techniques negotiators should use to address the emotional and financial needs of the family members and personal representatives, 2.) The professional obligations of the physician, and 3.) The interests of the comatose individual, the voiceless individual whose life depends on the decision reached in negotiation. The paper will also discuss the conflicting bioethical, legal, and social obstacles to negotiating end-of-life disputes. The research will conclude with an exploration of the prospects of the area of negotiating end-of-life disputes and recommend a plan for negotiating end-of-life disputes.

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by Brittany Henry

Brittany Henry is receiving her Juris Doctorate at Pepperdine University School of Law and her Certificate in Alternative Dispute Resolution from the Strauss Institute. She was born in San Diego, and graduated with a degree in Religion from Dartmouth College in 2007. She hopes to incorporate her ADR training in her future law practice in Southern California upon graduation. As a law student, Brittany has been actively involved with Pepperdine’s Family Law and Special Education Advocacy Clinics.