PA Bar Assn approves Orphans' Court Mediation Project

On Friday, November 21, 2014, the Pennsylvania Bar Association formally approved, by unanimous vote, a Report and Recommendation presented by its Alternative Dispute Resolution Committee regarding a proposal for mediation in the Orphans' Court Divisions, of the Courts of Common Pleas, in the Commonwealth.  

The "OC Mediation Project" proposes a "Model Local Rule" offered for consideration in the future by judicial districts in Pennsylvania favoring implementation of mediation in that Division for court-filed or court-annexed matters.

The proposal was endorsed by the Real Property, Probate & Trust Law Section and the Elder Law Section of the PBA.  

As a co-chair of the Subcommittee, a member of the ADR Committee, and a member of both those Sections, I presented the proposal first to the PBA Board of Governors on Wednesday, November 19, 2014 (which suggested amendments and then approved it 25-0) and then to the PBA House of Delegates on Friday, November 21st (which approved the amended proposal unanimously).

Participants on the Subcommittee who prepared the OC Mediation Project included Co-Chairs Bernice J. Koplin, Neil E. Hendershot, and Hon. Jay J. Hoberg; and Members Ann Lee Begler (Liaison to PBA Elder Law Section), David A. Fitzsimmons, John Francis Gough, Frederick K. Hatt, Timothy J. Holman, Hon. Richard B.  Klein, Vincent B. Lackner, Robert H. Lefevre, M. Melvin Shralow, Stanley A. Pelli, James A. Rosenstein (Chair of PBA ADR Committee), Ross F. Schmucki (Liaison to Philadelphia Guardianship Task Force), P. Douglas Sisk, Eric R. Strauss (Liaison to PBA RPPT Section), and Gordon M. Wase.

Following is the Report without the referenced attachments. The full report can be obtained from the PBA in the short term, prior to posting of the full Report on the PBA website in the future.

Recommendation

The PBA Alternative Dispute Resolution Committee recommends the Pennsylvania Bar Association to approve the Orphans’ Court Mediation Project as described in this report which includes but is not limited to the Model Local Orphans’ Court Rule 1.6 that is outlined in Attachment 5, on pages 18-19 of this Report.

Report

Members[1] of the Orphans’ Court Mediation Subcommittee (the “Subcommittee”), of the Alternative Dispute Resolution Committee, of the Pennsylvania Bar Association, examined how other states and some counties within Pennsylvania have expanded mediation into their probate-related divisions and have become mediation-friendly in the Orphans’ Court Division of the court.

Members of the Subcommittee are Pennsylvania attorneys, either trained or active as mediators, or involved in past mediations in representation of participants.  Some are licensed as mediators in additional jurisdictions, serve as mediators for various agencies and organizations (e.g. FINRA), or participated in programs of the Pennsylvania Superior Court and federal courts. 

The Subcommittee’s objective is to develop a Model Local Rule for Mediation in the Orphans’ Court Division (the “OC Mediation Project” or the “Project”), with accompanying forms and explanations that will be “not inconsistent” with the anticipated form of a new Supreme Court Orphans’ Court Rule 1.6.  The Model Local Rule would be made available for consideration by judicial districts in Pennsylvania for litigation filed in the Orphans’ Court Division or in certain court-annexed matters, where the Orphans’ Court Division has both in personam jurisdiction and subject matter jurisdiction if litigation would be commenced in the matter.

The present OC Mediation Project is limited to court-filed or court-annexed mediation.  However, statewide Supreme Court O.C. Rule 1.6 is anticipated to be broader.  Following a successful deployment of this phase of the OC Mediation Project, the Subcommittee expects to work on an expansion of mediation in this subject matter area to address private mediation or mediation which is not court-annexed.

The OC Mediation Project was described in two bar association newsletter articles.[2]

This presentation is intended for the Pennsylvania Bar Association governance.  It is proposed by the PBA’s Alternative Dispute Resolution Committee[3], and is supported by the PBA Real, Property & Trust Law Section[4], and by the PBA Elder Law Section.[5] 

Attachments 

Attached are the following materials, which explain or constitute the present status of the OC Mediation Project:

1. Article: A Model Local Orphans’ Court Rule for Mediation, by Bernice J. Koplin and Neil E. Hendershot, dated May 22, 2014, as published in two newsletters.  (Page 6)
2. Resources and References: Comparable Fiduciary Court Mediation Programs  (Page 8)
3. Comparison: Previously Published, versus Anticipated Revised, New Statewide O.C. Rule 1.6  (Page 13)
4. Brochure: Pennsylvania Orphans’ Court-Annexed Mediation Program  (Page 14)
5. Proposed Model Local Rule: Model Local Orphans’ Court Rule 1.6  (Page 18)
6. Form: Agreement to Mediate on a Confidential Basis  (Page 20)
7. Form: Notice of Initiation of Mediation  (Page 22)
8. Form: Notice of Completion of Mediation  (Page 23)
9. Form: Praecipe  (Page 24)
10. Statement:  Orphans’ Court Mediators and Their Qualifications  (Page 25)

 The Subcommittee may revise or expand generic forms for use in the OC Mediation Project, such as an application for a person to serve as a mediator.  The OC Mediation Project contemplates

periodic revision of these documents as various judicial districts or local bar associations gain experience with mediation in Orphans’ Court Division matters and provide feedback.

PBA Project Approval, Deployment, and Continuing Refinement

If approved by PBA governance and with continued monitoring by the ADR Committee, the Elder Law Section, and the Real Property, Probate & Trust Law Section, the OC Mediation Project will be ongoing.  If successful in its court-annexed approach, perhaps it can be expanded.  Perhaps this model for mediation could be expanded into other areas of substantive law not already addressed by mediation.

Who will promote, and then monitor and update, the Project on behalf of PBA? 

• The Subcommittee will promote the Project to local bar associations and provide information to the judicial districts in Pennsylvania on behalf of the PBA.
• The Subcommittee will monitor and update the OC Mediation Project with feedback received.
• The Subcommittee is accountable to the PBA ADR Committee.  The Subcommittee expects designated members to act as a liaison with the RPPT Section and the Elder Law Section, as active supporters of the Project.

Will additional resources be deployed?

• The Subcommittee recommends that the brochure, the forms, and reliable links regarding mediation be posted on a webpage of the PBA’s website, to be substantively supervised by the Subcommittee with maintenance by PBA Staff.
• The current PBA brochure on arbitration and mediation should be updated to include reference to the OC Mediation Project.
• The PBA may, through its ADR Committee, make available a database of trained mediators with significant Orphans' Court Division experience.  However, approval of this Presentation does not mandate creation or maintenance of a particular form of list. Local bar associations may also undertake to maintain such lists of mediators.
• The PBA will create disclaimers that there will be no liability, express, implied, or otherwise, regarding the Program, including actions or omissions of a mediator.
• Participants in a mediation shall agree to that condition in the written Agreement to Mediate.

What will the Project cost, and who will bear the costs?

• Costs of a webpage could come from the PBA’s operation budget with existing staff
• A source of ongoing funding could be, but is not committed to be: 1) the PBA general fund, 2) funds of the ADR Committee and/or the two supporting Sections, or 3) foundation or grant funds.  It is not anticipated presently that funds of the Unified Judicial System will be applied to the OC Mediation Project.
• The costs of individual mediation will be borne by the parties in interest, not the PBA, nor the Unified Judicial System.

Will this pro bono Project expand into a standalone operation?

• This is a targeted, limited authorization for mediation in Orphans’ Court Division matters and potentially related private matters not presented to an Orphans’ Court Division but within its subject matter jurisdiction.  If, over a period of years this Project is maintained and proves successful, it may become integrated into Pennsylvania’s Unified Judicial System in some way presently unforeseen, or it may become a self-supporting non-profit activity. 
• The present Project will produce a complete product outlining a mediation process, which then can be adopted through local rule under anticipated statewide OC Rule 1.6, or even in a case by case determination by special order. A local bar association may be involved, or a judicial district may adopt a local rule.
• In its present form, the Project would be maintained as a pro bono activity of PBA members to the extent of their available time and the PBA’s resources.  It is a model, not a mandate in any manner.  The Project is conditional in deployment upon approval by the PA Supreme Court of a new statewide Orphans’ Court Rule 1.6 substantially in the anticipated form, which would specifically authorize mediation in an Orphans’ Court Division of a local judicial district to occur after a specified effective date.
• There is no plan to expand the Project beyond this status, unless demand occurs and circumstances permit, and with the approval of the sponsors and PBA governance.
• The PBA is not committed to provide any funding.

What is sought from PBA governance? 

• The ADR Committee, with the support of the Real Property, Probate & Trust Law Section and the Elder Law Section, request approval of the OC Mediation Project.  
• Approval would allow public dissemination of the present form of a Model Local Rule for Orphans’ Court Division mediation and the proposed forms. 
• Approval would also authorize dissemination of information regarding the OC Mediation Project on the PBA’s website, with adequate disclaimers to the public.
• If PBA desires to monitor the Project over a period of time, and request subsequent review, for example, two years after its inception (which will depend upon the issuance of a new statewide Orphans’ Court Rule 1.6), the Subcommittee would accept that. 
• When the Project would be reviewed, it could be terminated, maintained as then in effect, or expanded, depending upon its reception statewide and upon the reactions of local courts, the Administrative Office of Pennsylvania Courts, and other organizations, such as bar associations, mediation providers, and even healthcare industry groups with members involved in resolution of end-of-life health care disputes, where subject matter jurisdiction resides in the Orphans’ Court Division.[6]

Respectfully Submitted,

James Rosenstein, Chair, PBA Alternative Dispute Resolution Committee

Submitted on October 14, 2014; Amended on November 19, 2014.

Approved, as amended, by the Pennsylvania Bar Association’s Board of Governors on November 19, 2014 (25-0), and by the PBA’s House of Delegates on November 21, 2014 unanimously.

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[1]   Participants on the Subcommittee include Co-Chairs Bernice J. Koplin, Neil E. Hendershot, and Hon. Jay J. Hoberg; and Members: Ann Lee Begler (Liaison to PBA Elder Law Section), David A. Fitzsimmons, John Francis Gough, Frederick K. Hatt, Timothy J. Holman, Hon. Richard B.  Klein, Vincent B. Lackner, Robert H. Lefevre, M. Melvin Shralow, Stanley A. Pelli, James A. Rosenstein (Chair of PBA ADR Committee), Ross F. Schmucki (Liaison to Philadelphia Guardianship Task Force), P. Douglas Sisk, Eric R. Strauss (Liaison to PBA RPPT Section), and Gordon M. Wase.

[2]   This article was published in the Newsletter of the Probate and Trust Law Section, Philadelphia Bar Association, in Issue No. 134 (May, 2014) at pp. 21-22 ( Link: http://goo.gl/h09sUA),, and in the Newsletter of the Real Property, Probate and Trust Law Section of the Pennsylvania Bar Association, in Issue No. 75 (Summer, 2014) at pp. 18 (Link: http://goo.gl/JIL9Wl -- available for limited time publicly, then archived into Section’s Member area).

[3] The PBA ADR Committee voted conditional approval of the OC Mediation Project during its leadership conference call on September 30, 2014, and final approval of this presentations packet subsequently.

[4]   The PBA Real Property, Probate & Trust Law Section voted approval of the OC Mediation Project during its Council Conference Call on September 19, 2014, and final approval of this presentation packet subsequently. 

[5]   The PBA Elder Law Section voted tentative support of the OC Mediation Project during its leadership conference call on September 5, 2014, and final approval of this presentation packet subsequently.

[6]  The PBA might address mediation of health care representative disputes that remain under the subject matter jurisdiction of the Orphans’ Court Division under Chapter 54 of the Probate, Estates & Fiduciary Code.  Bioethical mediation can be effective in difficult end-of-life situations or in surrogate healthcare decision making.  See: Waldman, Ellen, Bioethics Mediation at the End of Life: Opportunities and Limitations, Cardozzo Journal of Conflict Resolution, Vol. 15, pp. 449-471 (Feb. 14, 2014), found online at: http://cardozojcr.com/wp-content/uploads/2014/02/Waldman.pdf. For a model health care mediation program in Pittsburgh, see: Brochure, UMPC Intermediation Program, found online at: http://goo.gl/m2idu1.