Saturday, April 16, 2016

Expanding Access to Mediation in PA

Following is a document for use in a presentation to the Pennsylvania Council of Mediators, at its 29th Annual Conference on Expanding Access to Mediation, held on April 15 (Fri) -16 (Sat), 2016 at the Hilton Hotel in Harrisburg, PA.  

The presentation is offered on Saturday afternoon by Neil Hendershot, Esq., of Harrisburg, and Judge Jay Hoberg, of the Lancaster County Court of Common Pleas, as a workshop.

What follows is a counterpart of a Report and Recommendation adopted by the Pennsylvania Bar Association, which is in process of implementation.

Report and Recommendation
of the Pennsylvania Bar Association's
Alternative Dispute Resolution Committee
For a Model Local Rule for
Mediation in the PA Orphans' Court Division

[Note: This is an unofficial form edited by Neil E. Hendershot, Esq. of the final document approved by the Pennsylvania Bar Association’s Board of Governors on 11/19/2014, and by the full PBA’s House of Delegates unanimously on 11/21/2014, which is accurate substantively, but has been updated for subsequent developments.]

[Note: References below to “court-annexed” mediation in Pennsylvania should be read as “court-supervised”, in accordance with the final form of PA Supreme Court Orphans’ Court Rule 1.6,
issued on December 1, 2015, to become effective on September 1, 2016, which used the term “court-supervised” mediation.]



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 [court-supervised] 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 [court-supervised] 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 [court-supervised].

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  [Court-Supervised] 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 [court-supervised] 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.

Is there any liability for PBA or local bar associations?
·         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. 
·         Finally, approval would indicate support of the elements of the OC Mediation Project, as presented, for funding at a moderate level (which could be limited by the PBA initially or in its annual budget allowances). 
·         Costs should relate primarily to the reproduction of the brochure, which should be minimal, and also for assignment of staff resources, which should be limited too, in support of the Project’s administration by PBA volunteers.
·         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                                                               October 14, 2014
Chair, PBA Alternative Dispute Resolution Committee                         


[OC Mediation Project Presentation: Item 1]

Article:

A Model Local Orphans’ Court Rule for Mediation

by Bernice J. Koplin and Neil E. Hendershot
May 22, 2014, as published in Newsletters

          In April, 2013 the Supreme Court Orphans’ Court Procedural Rules Committee published a set of proposed new revised and expanded statewide Orphans’ Court Rules, the first such universal revision in forty years.  The current project of the Fiduciaries and Orphans’ Court Subcommittee of the Alternative Dispute Resolution Committee of the Pennsylvania Bar Association involves drafting and implementing a proposed Model Local Orphans’ Court Rule for Mediation for consideration and adoption, with any options deemed appropriate, statewide by counsel and the local courts.

The New Rules, which remain under review and further revision by the Rules Committee after comments were received, would include, for the first time, a New Rule 1.6 that would authorize mediation in matters before the Orphans’ Court Division.  There could be expansion of such mediation into matters not yet filed, but possibly so, if not resolved otherwise by disputing parties in interest. 

          New Rule 1.6, in its originally published form, provided as follows:

Rule 1.6. Mediation by Local Rule or Special Order:

The Court, by Local Rule or special order, may direct the parties to participate in private or court-sponsored mediation.

Note: Rule 1.6 has no counterpart in former Orphans’ Court Rules.

Explanatory Comment: The confidentiality of mediation is provided by statute, see 42 Pa.C.S. § 5949.

          Although this version of New Rule 1.6 likely will not be the final version of such a new Rule, it is expected to be retained and adopted in some form that would authorize mediation generally in Orphans’ Court matters. After final New Rules would be issued by the Pennsylvania Supreme Court, Local Orphans’ Court Rules, which would not be inconsistent with the generic statewide New Rule regarding mediation, could be promulgated.  The Subcommittee desires to produce such a reliable set of Model Local Rules for Mediation, with options, explanations, and resources, for consideration in the various judicial districts to implement mediation in Orphans’ Court matters specifically.

          The Subcommittee is in the process of drafting a Model Local Rule, with options and related materials, which will address various issues that could be further delineated under New Rule 1.6 at the local court level. 
Such issues include, among others:

●Procedures and guidelines for appointment or engagement of qualified mediators with expertise in the unique issues addressed by fiduciaries and in the Orphans’ Court;

● Generic forms, with options, for use by parties in interest, counsel, and local courts;

●Educational programs regarding mediation, targeted to mediators, to fiduciaries, to counsel, and to parties in interest in Orphans’ Court Division matters and proceedings;

● Qualification and conduct of mediators, including recommended training, substantive experience or expertise, and conduct; and

● Reliable online resources supporting the mediation process, explaining the benefits and limitations of mediation in Orphans’ Court matters, and listing contacts or services in counties promoting such mediation.

          The Subcommittee’s goal is to have a Model Local Rule, with explanations, options, forms, and resource links, available for deployment regarding Orphans’ Court matters.  The project would be completed in anticipation of all local rules being reworked (potentially even in those counties, such as Bucks and Chester, which have mediation programs in effect in their Orphans’ Court Divisions), prior to a deadline when final new Supreme Court Orphans’ Court Rules would become effective statewide.

The Subcommittee, through the ADR Committee and the PBA, hopes to offer its work product to local Orphans’ Court Division judges, to local bar association rules committees (which may assist the local courts), and to mediation organizations in the Commonwealth. 

          The purpose of the project is to facilitate and encourage mediation and to make it attractive for local courts to use, and adaptable to local situations, while preserving some consistency statewide.

Note:  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, to become archived into Section’s Member area).
[OC Mediation Project Presentation: Item 2]

Resources and References:

Comparable Fiduciary Court Mediation Programs


As background for OC Mediation Project, various Subcommittee members reviewed Internet links to mediation programs sponsored by courts, bar associations, or mediation organizations involving probate, trust, and elder law matters.  We began with the brochure published by the PBA entitled “Arbitration and Mediation”, which is posted online.[7]  Another key reference is the Model Standards of Conduct for Mediators (August, 2005)[8], adopted by the American Bar Association, the American Arbitration Association, and the Association for Conflict Resolution.

The following list of links is not exhaustive, but is representative of probate & trust law, elder law, and general law mediation programs operating in Pennsylvania and elsewhere.

Mediation Programs in the Commonwealth:

·         Pennsylvania Bar Association’s Pro Bono Mediation Program [9] -- Approved by PBA on April 11, 2013, and presently in operation on a pro bono basis for low income residents involved in small claims, landlord-tenant, and custody matters

·         Allegheny County [10] -- Brochure, Frequently Asked Questions About Mediation (2010), posted by the Allegheny County Bar Association

·         Bucks County [11] – Mediation in the Orphans’ Court Division

·         Chester County[12]Orphans’ Court Mediation Program brochure

·         Cumberland County[13] – General mediation program, including a brochure on Alternative Dispute Resolution (2010)[14]

·         Dauphin County[15] -- General mediation program, including Mediation Program Guidelines[16] a Request for Mediation form[17], and Agreement to Mediate form[18].

·         Lackawanna County[19] – Family law mediation program, one among many in the Commonwealth involving custody of minors

·         Montgomery County[20] – Montgomery County Bar Association’s Dispute Resolution Center

·         Philadelphia County [21] – Mediation in human relation matters

Mediation Programs in Other States:

California:

·         Fresno County[22] -- Joint program with Fresno Pacific University

·         Los Angeles County[23] -- Probate Court program operated under the Los Angeles County Superior Court local rules for mediation of matters in its jurisdiction.

·         Riverside County[24] -- Mediation program intended to address disputes in “Decedents’ Estates, Trusts, Conservatorships, and Guardianships”

·         San Diego County[25] --   A civil mediation program with a probate, trust, and estate planning aspect, offer a Probate Mediator Packet (PKT-037)[26], and a Probate Mediation subpage[27] for more information.

Colorado:

·         Denver Bar Association [28] -- Simple court-annexed mediation agreement (2006).

Florida:

·         U.S. District Court for the Southern District of Florida[29]  – General mediation provided by Local Rule 16.2 (under FRCP 16) for court-annexed mediation.

Illinois:

·         Cook County [30]  -- Local court rules for Probate Court-Annexed Mediation.

Maryland:

·         Baltimore County[31] -- A program in the Orphans’ Court to provide “Estate Mediation -- A Way to Resolve Estate Disputes Without Going to Court”

Michigan:

·         Genesee County[32] -- Probate court mediation under Michigan Court Rule 2.411

·         Kalamazoo County[33] – Mediation in Probate Court matters.

New Hampshire:

·         Probate Court Mediation Program[34] -- Authorized by State Of New Hampshire Probate Court Administrative Order #11 (09/25/09)[35]

New Jersey:

·         New Jersey’s General Mediation Process[36] – Programs under New Jersey Rule 1:40

·         Complementary Dispute Resolution Programs[37]

·         New Jersey Civil Mediation Resources[38]

·         New Jersey form of Agreement to Mediate in NJ Records Council matters[39]

New York:

·         Letter (02/17/14)[40]  -- From New York State Bar Association Dispute Resolution Section Chair re pilot program in New York County for mandatory mediation in commercial litigation

·         Article (03/26/14)[41] -- Explaining proposed pilot mediation program

Ohio:

·         Article, Summit County Probate Court develops mediation program[42]
(03/6/14), posted by the South Side Leader

Oregon:

·         Court-Annexed probate court mediators[43] – Example of a listing of qualified mediators

South Carolina:

·         South Carolina Bar Association[44] -- General ADR programs

·         Richland County [45] – Pilot Mediation Project in Probate Court

Texas:

·         Denton County Bar Association – General mediation orders[46] and a form Order of Referral to Mediate in Probate Court[47]

Other Resources:

·         Begler, Ackerman & McGloin, Transforming Pennsylvania Into a Mediation Friendly State: A Report of Focus Groups Conducted on June 14, 2002 and September 13, 2002, (report to the Alternative Dispute Resolution Committees of the Pennsylvania Bar Association and the Allegheny County Bar Association and the Pennsylvania Council of Mediators, January 23, 2003).

·         Butterwick, Hommel & Keilitz, Evaluating Mediation as a Means of Resolving Adult Guardianship Cases, The Center for Social Gerontology, Inc. (Ann Arbor) 2001.

·         Campisi, Dominic J. Using ADR in Property and Probate Disputes, Prob. & Prop., May- June 1995.

·         Coleman, Mary Kate (Chair, Court-Annexed Mediation Programs Subcommittee, Pennsylvania Bar Association), Results of Court-Annexed Mediation Programs Study, Arbitration and Mediation (Newsletter of the PBA ADR Committee), Vol. 15, No. 1 (Winter 2011), pp. 3-6.

·         Gary, Susan N., Mediation and the Elderly: Using Mediation to Resolve Probate Disputes over Guardianship and Inheritance, 32 Wake Forest L. Rev. 397, 424 (1997).

·         Gary, S., The Greatest Heritage is the Love of a Family: the Larson case and the Mediation of Probate Disputes, Pepperdine Dispute Resolution Law Journal (2001).

·         Madoff, Ray D., Mediating Probate Disputes: A Study of Court Sponsored Programs, Boston College Real Property, Probate and Trust Law Journal, Vol. 38, pp. 697-725 (Winter 2004).

·         Madoff, Ray D., Using Mediation to Resolve Estate and Trust Disputes 39th Annual Heckerling Institute on Estate Planning at the University of Miami School of Law, Miami, FL (Jan. 2005).

·         Mautner & Orr, A Brave New World: Nonjudicial Dispute Resolution Procedures Under the Uniform Trust Code and Washington’s and Idaho’s Trust and Estate Dispute Resolution Acts,  ACTEC Journal 159-181 (2009).

·         Radford, Mary F., An Introduction To The Uses of Mediation and Other Forms of Dispute Resolution in Probate, Trust, and Guardianship Matters, Real Property, Probate and Trust Journal, Vol. 34, No. 4, Winter 2000, pp. 601-667.

·         Schoenblum, Jeffrey A., Will Contests - An Empirical Study , 22 Real Prop. Prob. & Tr. J. 607, 647 (1987).

·         Shopp, Judy, Mediation: Confidentiality and Privilege, Pennsylvania Bar Association Quarterly (July, 2010).


[OC Mediation Project Presentation: Item 3]

Comparison:

 

Previously Published,

versus Anticipated Revised,

New Statewide O.C. Rule 1.6




2013 Previously Published Draft Version:

Rule 1.6. Mediation by Local Rule or Special Order:

The Court, by Local Rule or special order, may direct the parties in interest to participate in private or court-sponsored mediation.

Note: Rule 1.6 has no counterpart in former Orphans’ Court Rules.

Explanatory Comment: The confidentiality of mediation is provided by statute, see 42 Pa.C.S. § 5949.



2014 Anticipated Revised Final Version:

Rule 1.6. Mediation by Local Rule or Special Order:

All parties having an interest in a matter may participate by written agreement, or the court, by local rule or order in a particular matter, may provide for the parties in interest to participate in private mediation or in court-annexed mediation [Final issued version used term court-supervised mediation].

Note: Rule 1.6 has no counterpart in former Orphans’ Court Rules.

Explanatory Comment: The confidentiality of mediation is provided by statute, see 42 Pa.C.S. § 5949.


[OC Mediation Project Presentation: Item 4]

Brochure:

 

Pennsylvania Orphans' Court-Supervised
Mediation Program

 

A Prompt, Private and Economical Process

for Resolution of Disputes in the Orphans’ Court Division

involving Fiduciaries and Representative Decision-Makers

Why Mediation?
Court-supervised mediation is an alternative dispute resolution process in which a trained and experienced mediator facilitates communication and negotiation of disputes which promote voluntary decision-making by all the parties in the dispute. 
Participation is voluntary and confidential. Parties in interest can proceed to Court for formal adjudication if the mediation does not result in a mutually satisfactory agreement.

What kind of disputes can be mediated?


·         Your younger brother was named as sole executor under your mother’s Will. He has never shown good business sense. As the oldest child, you feel that you should be appointed instead of him, or at least share the appointment with him.  But he does not agree with your position.

·         Your father’s Will left his estate to you and your three siblings. You want the silverware and automobile as part of your share, but your siblings disagree with your position.

·         Your mother died without a Will. You, your brother, and sister are her legal heirs. You want to keep the family home, but your brother and sister want the property sold.

·         The executor of an estate in which you have an interest has failed to disclose to the beneficiaries information about estate assets, and fails to respond to requests for information.

·         The children of a prior marriage and the surviving step-parent cannot agree on the funding of a trust under the decedent's Will.

·         Family members have different ideas about the appropriate care and financial guidance for an older relative.

·         You were named as agent under a power of attorney from your father. Your sister wants to participate, and threatens to bring a guardianship proceeding to challenge your father's power of attorney.

·         Beneficiaries of a trust are having conflicts with the trustee, or fiduciaries are having disputes among themselves in decision making.

What are the benefits of Mediation?

·         Retain Control:  Instead of putting the decision in the hands of a Judge after formal hearings, where generally one side wins and one side loses, mediation enables the parties in interest engage in discussions and make mutual decisions that work for them.

·         Preserve Confidentiality: Instead of a public airing in a courtroom, mediation is conducted in private. If an agreement is reached, only that agreement may become part of the court record, and even that could be a summary.

·         Agree Mutually: All parties in interest involved in the dispute must agree to mediate and to resolve issues unanimously.

·         Preserve Relationships: With its private, personal, and non-adversarial environment, mediation may help preserve relationships that could be strained by going to Court and facing others as adversaries.

·         Save Money:  Mediation fees often are less than going to court.  However, the costs of mediation are paid by the participants,  not a court, unless otherwise ordered.

·         Schedule Conveniently:  Mediation may be scheduled at mutually convenient dates, times, and locations.

·         Approach Creatively:  Rather than be constricted by narrow rules of evidence and by fixed positions of parties in interest, mediation can facilitate workable solutions not likely to be generated by litigation.

·         Resolve Efficiently:  Resolution may be reached in a single session, with documentation prepared afterward by professionals.

How does Mediation in Orphans’ Court Division matters work?


Even where litigation already was commenced in the Orphans’ Court Division, at any time all parties in interest may engage the services of a mediator to facilitate a mutually satisfactory agreement. Lawyers for parties in interest can be involved in the proceeding.  Best results are obtained by mediating as early in the dispute as possible.

Information regarding qualified mediators may be maintained by a local bar association, the Pennsylvania Bar Association, or perhaps by a local court office, , which would be made available to any party in interest upon request. All parties in interest may choose a mediator from that information or from another source.  The Pennsylvania Bar Association’s Alternative Dispute Resolution Committee may make available a data base of trained mediators with significant Orphans' Court Division experience.

If litigation is ongoing, parties in interest electing to use the services of a mediator will need to confirm an authorization from the Court after providing information regarding the proposed mediator, all the parties in interest who will participate, the provision for payment, and any party in interest whose interests might require special protection due to diminished capacity or legal disability.  These requirements will be set by local court rules.  Updates regarding the status of the mediation should be provided periodically to the Court.

If no litigation is filed in connection with a dispute, then Court authorization would not be required, only a formal agreement by all parties in interest to mediate the disputed matters. The agreement would spell out the process of confidential mediation and the rules of conduct. The Mediator may also require a separate or more complete agreement relating to the confidential mediation and his or her additional terms or requirements, whether the mediation is private or court-supervised.

No sponsor of the Program will be responsible for its outcome in any way.  There will be no liability, express, implied, or otherwise, regarding the Program, including the actions or omissions of a mediator for a mediation program sponsor.  Participants must agree to that condition.

The mediator will set up at least one mediation session, which you will attend with the other parties in interest involved in your case.  If represented by an attorney, your respective lawyers may attend as well. All parties in interest will be required to sign an agreement that will preserve the confidentiality of the mediation process. The length and number of sessions will be determined by the mediator, the parties in interest, and the progress being made.

Upon completion of mediation, the Mediator will file a report with the Court and the parties would file their agreement with the Court.  Unresolved issues for determination by the Court would be identified.  If the parties in interest reach a complete agreement, the agreement would include the terms of the agreement and the future responsibilities of each party in interest.  The agreement may become part of the Court record, or the parties in interest may choose to keep the agreement confidential by filing a stipulation that it would be approved but sealed by the Court.

If no agreement is reached, the report will state that the parties in interest did not reach an agreement.  If some issues have been resolved, the report will indicate the terms of agreement and the unresolved issues to be determined by the Court.

Mediation would not delay litigation unless specifically requested and so ordered by the Court.

How much does Mediation cost?

The fees for Mediation can be substantially less than the costs incurred in Court litigation and appeals.  The initial session likely will cost an initial fixed fee, as a one-half day mediation session with a maximum of four (4) hours.  Many mediators charge an hourly rate after an initial session. However, charges by mediators vary, and should be determined in advance by the parties in interest and their counsel. 


The charges of the mediator would be shared among all of the parties in interest as they would agree in advance and clarify in an agreement with the mediator.

There may also be costs of counsel to prepare for mediation sessions.

How can I obtain more information?

[Space to add local contact information with customized printing, stamp, or sticker]


[OC Mediation Project Presentation: Item 5]

Proposed Local Model Rule:

MODEL LOCAL ORPHANS’ COURT RULE 1.6


All parties in interest in a matter may use mediation to resolve issues pending before the Court, and, upon either partial or complete resolution, may petition the Court to approve the agreement of all parties in interest as an order or decree of the Court.

A.   The parties in interest may engage the services of a mediator, either prior to or after any party in interest has filed a Pleading before the Court, including an Account filed by a fiduciary for audit.

B.    Upon the filing of a Pleading before the Court, including an Account filed by a fiduciary for audit, the Clerk shall provide the filing party with generic information regarding availability of mediation for the resolution of disputes prior to adjudication by the Court.

C.   The filing party shall provide such information to other parties in interest. The information, which does not bind the Court, and which may be in the form of a standard brochure, should include:

1.            A brief description of the mediation process;
2.            The anticipated benefits of mediation for litigants and associated professionals; and
3.            Contact information to initiate mediation.

D.   All the parties in interest in a matter docketed before the Court may request to engage in mediation at any time during the pendency of the matter. 

E.    In such request for mediation, all parties in interest shall identify:

1.    The proposed mediator and the proposed source of payment of fees and costs of the mediator;
2.    Names and contact information of all parties in interest and any counsel who shall participate in the mediation;
3.    Names and information regarding any parties in interest having diminished capacity or a legal disability, whose interests must be adequately protected; and
4.    The scheduled date for the initial mediation conference.

F.    All parties in interest shall execute an agreement for confidential mediation, which is not inconsistent with this local rule, and which shall remain confidential.

G.   Mediation shall not delay the required filing of any Pleading or ordered return dates, or the scheduling of Court Hearings, unless specifically requested by joinder of the parties in interest and so ordered by the Court.

H.   The Court will respect the confidentiality of the mediation process and of the mediator's obligation of confidentiality

I.     Upon completion of mediation, all parties in interest shall sign a memorandum of principal terms, which either shall acknowledge that no resolution was reached, or shall embody the resolutions attained.  This memorandum of principal terms shall clearly state partial resolutions or complete resolution attained.  The memorandum of principal terms shall include a list of unresolved issues to be determined by the Court.  Where appropriate, the principal terms could provide for future review in light of changed circumstances or a change in the operative facts. The memorandum of principal terms agreed upon, or the statement of no resolution, shall be filed with the Court.

J.    In no event shall the terms agreed upon depart from or violate any provisions of applicable law, specifically including the Older Adults Protective Services Act, the Act of Dec. 18, 1996, P.L.1125, No.169 (35 P. S. § § 10225.101 — 10225.5102), as may be amended.

K.    The parties in interest may request that the Court approve the final mediated agreement, which embodies the principal terms agreed upon in the memorandum referenced above. The Court may grant approval in an order or decree..  Alternatively, the Court may recommend any changes that the Court deems appropriate for approval.  The parties to the mediation may accept the Court's recommendations, in which event the terms agreed upon, as modified, shall be approved, or the parties may decline to accept the Court's recommendations, in which event the matter is deemed not to have resulted in an agreement. 


[OC Mediation Project Presentation: Item 6]

Form:
CAUTION: THIS SAMPLE FORM IS SUBJECT TO CHANGE -- USE THE MOST RECENT REVISION

[CAPTION]


AGREEMENT TO MEDIATE ON A CONFIDENTIAL BASIS


This Agreement is effective on the ____ day of ____________, 20___, among the undersigned persons to initiate a process of mediation regarding disputes among them that are in the subject matter of the Orphans’ Court Division, of the Court of Common Pleas, as described in an attachment.

1.    The public is served by speedy and amicable resolution of private disputes. It is in the interests of the Orphans’ Court Divisions, of the Courts of Common Pleas of the various judicial districts in the Commonwealth, to encourage parties in interest to mediate and discuss possibilities for resolution of matters under the Courts’ jurisdiction, to resolve disputes in an efficient and fair manner through alternative dispute resolution (ADR) processes.  The Courts encourage parties in interest to participate voluntarily and mutually, rather than enter into adverse litigation.  If mediation is unsuccessful, then litigation can proceed for Court adjudication of remaining disputes under its jurisdiction.

2.    The parties in interest and counsel, identified below, agree that they, and their representatives, shall be bound by 42 Pa. C.S.A. § 5949 (Confidential mediation communications and documents). 

3.    Furthermore, during the mediation process, the parties in interest and counsel shall not disclose the mediation discussions in this matter, except to:  (a) the parties in interest themselves, (b) to their counsel, (c) to any expert(s) assisting counselor (e) as the parties in interest and their counsel jointly agree    In no event shall the Mediator be called upon to disclose what occurred in the mediation.

4.    If the parties in interest and the counsel jointly agree to disclose some aspects of the mediation discussions, it shall not be considered a waiver of confidentiality of the other aspects of the mediation discussions.

5.    No involvement in the mediation discussions will be allowed to any party in interest who declines to mediate on a confidential basis.

6.    This Agreement does not determine whether any resolution, in itself, would be confidential. This Agreement only determines that the mediation discussions shall remain confidential. Whether or not a resolution itself will remain confidential will be the subject of agreement by the mediation participants.

7.    If any participant, party in interest, counsel, or other representative breaches this Agreement to mediate in confidence, then any other participant or party in interest shall have the power to void, revoke, and terminate any mediation discussions or resolutions.

8.    All persons who sign this Agreement agree, for themselves and their agents or representatives, to honor, both in spirit and in letter, the promise of confidentiality of mediation discussions contained in this Agreement.

9.    All persons who sign this Agreement waive any liability, express, implied, or otherwise, regarding the mediation or the program whereby mediation was initiated, including the actions or omissions of a mediator or a mediation program sponsor.

10. All persons who sign this Agreement agree that they will enter into the Mediation in “good faith”. Good faith includes, among other things, the following: 1) being fully prepared to discuss all aspects of the dispute, and possible solutions for resolving it; 2) having the person with the authority to approve the terms for resolution attend the mediation session, or, at the least, be available to confer with the party’s representative during the mediation regarding the approval of terms; 3) demonstrating a willingness to listen and understand the perspectives of all participating parties; and (4) treating the parties, the Mediator, and all other participants with civility and respect.

11. All persons who sign this Agreement agree that the provisions of the Older Adults Protective Services Act, the Act of Dec. 18, 1996, P.L.1125, No.169 (35 P. S. §§ 10225.101 — 10225.5102), as amended, to the extent applicable, shall be honored by the Mediator.


Signatures of Parties in Interest / Counsel and Dates:

Acceptance by Mediator, with contact information:

Attachment:  General description of matters to be mediated [customized for each mediation]

Note: This sample form relates to the participants in the mediation.  A Mediator may utilize a separate or more complete agreement, so long as it is not inconsistent either with the applicable local court rule regarding mediation or with statewide Orphans’ Court Rule 1.6 regarding mediation.



[OC Mediation Project Presentation: Item 7]
Form:

[Caption]

Notice of Initiation of Mediation


Please complete prior to the date on which mediation is initiated. Return it directly to the Judge assigned to this matter (not to the Clerk of the Orphans’ Court Division) at least ten days prior to the date on which the mediation is scheduled to commence, and also provide a copy simultaneously to the mediator.

Pursuant to the Agreement for Confidential Mediation executed on
                     ,         (copy attached), all of the parties in interest in this matter, including those represented by counsel, those representing themselves, and legal representatives of minors and alleged incapacitated persons, listed below in the capacity shown, state that we have agreed to initiate mediation in this matter on
                                   ,         and that the mediator we have engaged is
                                                    :


Signature                                                   Printed Name of Party’s Counsel                                    Printed Name of Party:

Signature                                                   Printed Name of Party’s Counsel                                    Printed Name of Party:

Signature                                                    Printed Name of Party’s Counsel                                    Printed Name of Party:

Signature                                                    Printed Name of Party’s Counsel                                    Printed Name of Party:



Dated:                                            


[OC Mediation Project Presentation: Item 8]
Form:

[Caption]

Notice of Completion of Mediation



Please complete and return to [the Judge assigned to this matter][the Clerk of the Orphans’ Court] immediately after the mediation is concluded or upon returning the case to the Court for other reasons.

Mediation Status:

       Case resolved and agreement executed and transmitted to court

       Case resolved and parties in interest drafting agreement to be transmitted to court

       Case resolved in part

       Case resolved prior to mediation

       Case not resolved at this point

       Mediation terminated because mediation inappropriate for this case



                                                                                                                            
Date Mediation Completed                              Mediator - signature


Mediator - please print or type name


Mediator - phone number


Mediator - email address


[OC Mediation Project Presentation: Item 9]
Form:

[Caption]

Praecipe

To the Clerk of the Orphans’ Court Division:

[Here list directions to the Clerk, if permitted without Court authorization, such as:]

·         All issues in the above-captioned matter have been resolved through a mediation process. Accordingly, please withdraw the [pleading(s) filed] and mark the docket that the matter is “settled and withdrawn” [with or without] prejudice.

·         All objections to the Account filed in the above-captioned matter have been resolved through a mediation process. The parties in interest request that the Account be returned to the Clerk of the Orphans’ Court without audit for confirmation.

This Praecipe is filed by the undersigned, with the concurrence of all counsel of record and the specific knowing and willing authorization of all unrepresented parties in interest.

Notice of the filing hereof is provided to all such persons in interest according to the Certificate of Service attached hereto.



Date:                                  



[Name], Esquire (I.D. No.          ) Smith, Jones, P.C.
1234 Commerce Building
Anywhere, PA 16789
123-456-7890
Counsel for the [Role of Party]









Attachment: Certificate of Service


[OC Mediation Project Presentation: Item 10]

Statement:

Orphans’ Court Mediators and Their Qualifications


Qualified Orphans’ Court Mediators:

Mediation in matters under the jurisdiction of the Orphans’ Court Division often can be complex, requiring specialized knowledge or experience about the subject matter, in addition to general mediation skills. 
To encourage mediation in Orphans’ Court-supervised matters, a local bar association, court personnel, or the Pennsylvania Bar Association, through its Alternative Dispute Resolution Committee, may maintain a list of interested professionals who are experienced and qualified to act as a mediator in such matters.  Such a list is not an endorsement, a certification, or a limitation, but would be offered as a generic resource for those investigating mediation and mediators.
Counsel interested in being included on such a list should submit a statement of counsel’s qualifications and experience for reference.

Recommended Qualifications for Mediators in Court-Supervised Orphans’ Court Mediations:

A Mediator should have least five (5) years general practice experience, and preferably some specific experience in matters which come before the Orphans’ Court Division.
Mediators should have completed at least twenty-four (24) hours of formal training in mediation skills and should commit to at least two (2) hours annually of continuing education in mediation theory, skills and practice.
Other characteristics of a professional which support a role as a mediator, include extensive experience in practice before the Orphans Court Division, extensive experience in mediation, or consistent demonstration of neutral, analytic, and facilitative skills that have contributed to the resolution of matters in dispute. Mediators shall be familiar with applicable rules of court.


FOOTNOTES:

[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.