PA ADR: A Newsletter & an OC Case

The Alternative Dispute Resolution Committee, of the Pennsylvania Bar Association, published its Spring, 2007, "Arbitration & Mediation" Newsletter, which is now available online publicly (PDF, 5 pages).

The PBA's E-News message, sent to all PBA members on May 7, 2007, summarizes the Newsletter's contents:

The issue includes reflections on the recent death of Mark A. Welge, a former committee co-chair, who mediated and arbitrated more than 1,000 disputes and always led by example.

The newsletter includes tips for using the PBA listserv and an analysis of a ruling by a Pennsylvania Public Utility Law Administrative Law Judge in favor of mediation confidentiality. * * *

Past issues of the Committee's Newsletters, back to Volume 5 (Spring, 2000), are available on the public area of the PBA's website, here.

Alternative dispute resolution (ADR) will become more important in resolving disputes among seniors or from fiduciary administrations. See: PA EE&F Law Blog posting "Symposium on Ethical Standards for Elder Mediation" (02/01/07).

ADR also will become more widespread in resolving fiduciary litigation matters, both at the trial court level & the appellate court level.

Leaders in ADR involving fiduciaries & their funds at the trial court level are the Montgomery County (PA) Bar Association and the Montgomery County (PA) Court of Common Pleas.

The Montco Bar established its Davenport Dispute Resolution Center to provide a means of resolving disputes by agreement in structured discussions, but without adverse proceedings & a formal court adjudication, thereby avoiding "crowded dockets, high trial costs, and drawn-out litigation." Its services are "available to individuals, corporations, insurance carriers and all other parties seeking an expeditious resolution to a dispute."

The Montco Bar answers the question "What is ADR?" simply on its website, by discussing the two main forms -- "arbitration" and "mediation".

Arbitration is a simplified version of a trial. A dispute is submitted to a third party for a decision, which may be binding or non-binding (advisory). In either case, the arbitrator — a neutral person or panel of neutral persons — hears each side's presentation of evidence and arguments, then makes a determination in favor of one or the other. The disputing parties must agree in advance that the arbitrator's decision (typically an award) is final. And, unlike arbitration through the courts, ADR programs can arbitrate cases involving any amount of money in question.

Mediation is a process for resolving disputes with the aid of a neutral person, in this case an attorney trained in negotiation. The mediator's role involves identifying the issues in question, and exploring and negotiating settlement options — by meeting with each party privately or both sides collectively in the same room. (All information is held in confidence by the mediator.)

It is not the mediator's job to decide the outcome; the parties in the dispute and their counsel must agree to any resolution. Mediation is an even less formal alternative to litigation than arbitration, as agreements approved by either party or counsel are not binding.

The Montco Center offers a list of approved arbitrators/mediators and states a schedule of costs for participation in ADR program. Its services apply to all civil matters, including matters in the Orphans' Court Division.

I find it interesting, then, that a formal trial court adjudication issued (not a matter mediated) in Montgomery County & appealed by the disappointed party, has been ordered into the newly-created appellate court level mediation program of the Pennsylvania Superior Court. For background about that exploratory Program, see: PA EE&F Law Blog posting "PA Superior Court Announces New Appellate Mediation Program" (10/09/06).

The Superior Court posted basic "Interim Operating Procedures" (PDF, 2 pages) in October, 2006, for its pilot Appellate Mediation Program. Since then, I encountered nothing more about it, until a newspaper report appeared recently.

In the article "Suit over $400K estate sent to mediation" by Carl Hessler Jr., published in The Mercury (Pottstown, PA), on April 11, 2007, it was reported that the Pennsylvania Superior Court ordered mediation on matters appealed from an adjudication & order issued by the Orphans' Court Division, of the Court of Common Pleas of Montgomery County, PA:

A state court has ordered the parties involved in a battle over the right to a Pottstown woman’s estate to mediation in an apparent attempt to settle the dispute.

The Superior Court of Pennsylvania’s order for mediation was handed down April 4 after Susan Woodley of Pottstown appealed a Montgomery County judge’s decision that would allow Dr. Kennedy J. Sbat to probate a photocopy of a will of Woodley’s mother, Dorothy R. Banus, who died in January 2006. The will, dated Aug. 14, 2003, named Sbat as executor and the doctor and his wife as the beneficiaries of the estate, according to court papers.

Woodley has challenged Sbat’s right to the estate, which is estimated to be worth more than $400,000.

"I think it’s favorable because I think that this is going to find a just and fair resolution one way or another for all parties involved," said Adam J. Sager, the lawyer who represents Woodley, commenting about the state court’s ruling.

Under the state’s new mediation program, a mediator will hear arguments from lawyers representing both Woodley and Sbat with the intent to reach a settlement. * * *

[Montgomery] County Orphans’ Court Judge Stanley R. Ott heard testimony in Woodley’s appeal last August and October. * * * Woodley then appealed Ott’s ruling to Superior Court.

Since the Superior Court's Appellate Mediation Program is a pilot program, more than just the parties in this case have an interest in the experience of the litigants while in mediation.