Expanding Access to Mediation in 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
·
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
Mediation
Programs in Other States:
California:
·
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:
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:
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
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
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:
South
Carolina:
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.
