PA Model Local Rule for Mediation

New Statewide Orphans’ Court Rule 1.6 for Mediation

and PBA’s Approved Model Local Rule for Mediation

by Neil E. Hendershot, Hon. Jay J. Hoberg, and Bernice J. Koplin, Co-Chairs,

Fiduciary Mediation Subcommittee, Alternative Dispute Resolution Committee,

Pennsylvania Bar Association

March, 2016

New Statewide Orphans’ Court Rules

            On December 1, 2015, the Pennsylvania Supreme Court issued an Order[1] approving amended and restated procedural Supreme Court Orphans’ Court Rules[2] (“New Statewide OC Rules”), to be applicable statewide to all judicial districts in Orphans’ Court Division and in Orphans’ Court matters, effective nine months later, on September 1, 2016. The New Statewide OC Rules were published in the Pennsylvania Bulletin on December 19, 2015[3], along with an Amended Order.[4] 

That Order was accompanied by a Report[5] issued by the Supreme Court’s Orphans’ Court Procedural Rules Committee[6] (“Statewide OC Rules Committee”), which provided background and explanation.

The New Statewide Rules replace most current statewide Orphans’ Court Rules, which were initially adopted in November, 1975, effective January 1, 1976.  However, certain current statewide and local OC rules were retained relating to existing Chapter 14 (Guardianships), Chapter 15 (Adoptions), and Chapter 16 (Abortion Control Act Proceedings).  More recently, the Statewide Supreme Court Rules Committee published a Notice of Proposed Rulemaking, which offers for public comment a third revised set[7] of proposed statewide OC rules under a new Chapter XV (Adoptions)[8], with comments due by March 16, 2016.[9]

            The statewide Orphans’ Court Rules revision project began in October, 2007, upon initiative of the Supreme Court and its Chief Justice, Ralph Cappy.  After six years of work within the Statewide OC Rules Committee[10], a set of proposed replacement statewide OC rules was published for public comment on April 13, 2013 (“Proposed Statewide OC Rules”)[11], after which many comments were received, before finalization into the adoptedand published New Statewide OC Rules on December 1, 2015.

A second Order, also dated December 1, 2015, vacated certain  existing local Orphans’ Court Rules (except those related to Chapters 14, 15,and 16), effective as of September 1, 2016.  That second order acknowledged “the continued necessity of existing local orphans’ court rules as of September 1, 2016”, and so directed the President Judge of each judicial district to review existing local rules in light of the newly adopted statewide OC Rules.[12]

Mediation under Statewide Orphans’ Court Rules

The Proposed Statewide OC Rules had included, for the first time, a proposed new Rule 1.6 authorizing mediation in the Orphans’ Court in matters under its jurisdiction.[13]  It was noted that “Rule 1.6 has no counterpart in former Orphans’ Court Rules.” The prior proposed rule had provided a rule entitled “Mediation by Local Rule or Special Order” as follows: “The Court, by Local Rule or special order, may direct the parties to participate in private or court-sponsored mediation.”

            A group within the Pennsylvania Bar Association was formed in early 2014, by the current co-chairs, formally known as the Fiduciaries and Orphans’ Court Subcommittee, of the Alternative Dispute Resolution Committee, of the Pennsylvania Bar Association (the “Subcommittee”) to study the proposed statewide OC rule authorizing mediation, and also to suggest further local rules and procedures for deployment.

            The Subcommittee offered comment for a revised title and provision for proposed OC Rule 1.6. Eventually, the Subcommittee’s suggested revision was accepted, but with one significant change revealed upon adoption of New Statewide OC Rule 1.6. 

Anticipating with hope an ultimate adoption of some revised form of Rule 1.6 to authorize mediation in Orphans’ Court matters, the Subcommittee then focused upon a workable local Orphans’ Court rule and a set of proposed forms that could be adopted as “not inconsistent” with anticipated Rule 1.6, to enable mediation statewide in Orphans’ Court matters.

The Subcommittee prepared a Model Local Rule 1.6 to enable mediation in judicial districts and also developed procedural forms for use.  The co-chairs researched mediation in such matters nationwide, and presented authority for adoption in Pennsylvania.  The Subcommittee also considered the distinctive nature of Orphans’ Court matters involving fiduciaries, beneficiaries, and persons under a legal disability, and the special role of the Orphans’ Court in protecting certain persons and supervising certain matters under its jurisdiction. 

The result of that effort by the Subcommittee was approval by the PBA Board of Governors on November 19, 2014, and by the full PBA House of Delegates unanimously in November 21, 2014, of the Model OC Mediation Project Report.  The Report was presented by the PBA’s ADR Committee and co-sponsored both by the PBA Real Property Probate and Trust Law Section and by the PBA Elder Law Section.  The RPPT Section also offered financial support to promote the OC Mediation Project, once in effect.[14]

In early 2015, the PBA-approved Model OC Mediation Project Report was informally presented to the Statewide OC Rules Committee.  In this informal colloquy, the Subcommittee became comfortable that its proposals for a local rule governing mediation would pass the test of being “not inconsistent” with a statewide OC Rule 1.6, either in the original or in the suggested form.  The final form of New Statewide OC Rule 1.6 supports this likelihood and expectation.

Final Form of Rule 1.6 for Mediation

The revised, final version of New Statewide OC Rule 1.6, is entitled “Mediation by Agreement, Local Rule, or Court Order.” It provides:  “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 to participate, in private mediation or in court-supervised mediation.” 

The single alteration from the Subcommittee’s prior suggestion for revision was subtle, but substantive and significant.  The final rule’s term “court-supervised”, instead of the Subcommittee’s suggested term “court-annexed”, clearly requires current Orphans’ Court involvement.  That change makes clear that an Orphans’ Court must be in a “supervising” role in resolution, by some means, of a matter in contention or requiring determination. 

The term “court-supervised” is not defined.  Indeed, the word “supervised” only appears in one place in the New Statewide OC Rules – in Rule 1.6.  This may necessitate an addition to the Model Local Rule to reference the docketing of a matter in some manner.

That change does not preclude private mediation without reference to Rule 1.6 in matters that might, if unresolved, still be presented to an Orphans’ Court for resolution by virtue of its jurisdiction.  However, a local rule regarding mediation would not apply to such matters until docketed.  The effects of a mediation not “supervised” by an Orphans’ Court might be unpredictable and unenforceable as to an agreement voluntarily attained.  Likewise, an Orphan’s Court might not be bound by an un-supervised mediation if a party attempts to assert confidentiality of mediation provided by statute under 42 Pa.C.S. § 5949 (referenced in the “Explanatory Comment” to New Statewide OC Rule 1.6.

Subcommittee’s Promotion of the OC Mediation Project

The Subcommittee will further revise its packet of a Model Local Rule and forms, consistent with the final language of New Statewide OC Rule 1.6.  The revised packet will be made available on the Pennsylvania Bar Association’s website, due to PBA approval, ADR Subcommittee oversight, and RPPT Section support. 

The Subcommittee now promotes adoption – whether before June 1, 2016, or sometime thereafter – of a local OC Rule 1.6 in many judicial districts.  The basic model will enable voluntary mediation in Orphans’ Court matters without further extensive study or drafting.  Of course, local courts can modify the proposed Local Model OC Rule 1.6 to align with current practices in court-supervised mediation, or to integrate appointments and monitoring into procedures applicable to masters or auditors.  The Subcommittee also urges usage of the minimal and workable set of sample forms for use in connection with a local OC Rule 1.6.

            While New OC Rule 1.6 authorizes mediation in matters supervised by the Orphans’ Court, in the future, there could be expansion of such mediation into matters not yet filed, if not resolved otherwise by disputing parties in interest.  But for the coming year, the Subcommittee will focus upon enable mediation for dispute settlement in the Orphans’ Court and in court-supervised matters.

Addenda: Rules

           

New Statewide OC Rule 1.6 provides as follows:

Rule 1.6. Mediation by Agreement, Local Rule or Court 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 to participate, in private mediation or in 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.

The Subcommittee proposed a Model Local OC Rule 1.6 in the following form, subject to local judicial modification as deemed appropriate.  This proposed model rule will be revised by the Subcommittee prior to formal posting to integrate its definitions with those in the New Statewide OC Rules:

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.

           Such a Model Local Rule could be adopted in this form, saving drafting time and effort by local rules committees.  It has been vetted informally by the Statewide OC Rules Committee already, so that this form of a Model Local Rule and the Forms in its appendix will be “not inconsistent” with the New Statewide OC Rules.  Because Chapter 10 of the New Statewide OC Rules addresses the Registers of Wills, new Statewide OC Rule 1.6 and this Model Local Rule 1.6 could also apply to proceedings before Registers of Wills, where mediation could be appropriate for dispute resolution.

           The Subcommittee encourages adoption of the Model Local Rule and the forms in judicial districts, so that the goal of statewide simplicity and consistency will be achieved in mediation under New Statewide OC Rule 1.6.

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FOOTNOTES:

[1] Order Rescinding and Replacing Rules 1.1 through 13.3 and Rule 17, and Amending Rules 14.1 through 16.12 of the Pennsylvania Orphans’ Court Rules, No. 682, Supreme Court Rules Docket (December 1, 2015), is found online at: http://goo.gl/MO7aGX.  [Note: All website references are abbreviated into a Google URL identifier (Goo.url) to access the original URL for ease of access.  Google’s Chrome browser works best with such links.]

[2] New statewide Pennsylvania Orphans’ Court Rules, effective on September 1, 2016 and thereafter, are found online at: http://goo.gl/xpzd6F.

[3] The New Statewide OC Rules were published in the Pennsylvania Bulletin on December 19, 2015, under Pennsylvania Code, Title 231, Part II.,  Rules of Civil Procedure, Orphans’ Court Rules, at 45 Pa.B. 7098, found online at: http://goo.gl/8ZXn6g .

[4] An Amended Order Rescinding and Replacing Rules 1.1 through 13.3 and Rule 17 and Amending Rules 14.1 through 16.12 of the Orphans' Court Rules, No. 682 Supreme Court Rules Doc. was published in the Pennsylvania Bulletin on December 19, 2015, at 45 Pa.B. 7098, found online at: http://goo.gl/8ZXn6g .

[5] See Orphans’ Court Procedural Rules Committee Report, found online at: http://goo.gl/kjU429.

[6] See web page for the Statewide OC Rules Committee online at: http://goo.gl/ifAsO.

[7] Prior proposed revisions to statewide OC rules governing adoptions were published in a first version at 41 Pa.B. 2932 (June 11, 2011), and in a second version at 43 Pa.B. 6321 (October 26, 2013).

[8] Proposed new Chapter XV (Adoptions), offered for public comment, are found online at: http://goo.gl/E2mIbC.

[9] Notice of Proposed Rulemaking, for Proposed Rescission of Rules 15.1 through Rule 15.9 and replacement with the new rules of Chapter XV, found online at: http://goo.gl/HLw9L8

.

[10] One of the authors, Mr. Hendershot, was an appointed member of the Statewide OC Rules Committee from 2008 to 2013.

[11] Proposed New Pa. O.C. Rules 1.1—11.6 and Explanatory Notes were published for comment in the Pennsylvania Bulletin at 43 Pa.B.  2010, on April 13, 2013, found online at: http://goo.gl/2WslV.

[12] Order re Review and Vacatur of  Local Orphans’ Court Rules, No. 683, Supreme Court Rules Docket (December 1, 2015), is found online at: http://goo.gl/3f03hR.  This Order was published in the Pennsylvania Bulletin on December 19, 2015, at 45 Pa.B. 7126 (found online at: http://goo.gl/0R515m).

[13] For matters under the jurisdiction of the Orphans’ Court, see: 20 Pa. C.S. §711 (Mandatory exercise of jurisdiction through orphans' court division.) and §712 (Nonmandatory exercise of jurisdiction through orphans' court division.), found online at: http://goo.gl/P6NLKg and http://goo.gl/KLo1MR, respectively.

[14] See “PA Bar Assn approves Orphans' Court Mediation Project”, by Neil E. Hendershot, PA Elder, Estate & Fiduciary Law Blog (11/24/14), found online at: http://goo.gl/KEi3oe.