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Guidelines for Programs Seeking Certification Pursuant to Rule 9

By Kathryn Sims,2014-07-10 16:37
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Guidelines for Programs Seeking Certification Pursuant to Rule 9 ...

Guidelines for Programs Seeking Certification Pursuant to

    Rule 9 of the Supreme Court’s Rules Implementing Mediation

    In Matters Before the Clerk of Superior Court

    (Adopted by the NC Dispute Resolution Commission 8/25/06)

    Adult Guardianship and Estate Mediator Certification Training

    These Guidelines are intended to amplify Rules 8 and 9 of The Rules

    Implementing Mediation In Matters Before the Clerk of Superior Court (Rules) as they

    pertain to certification of adult guardianship and estate mediation training programs. All

    trainers seeking such certification should read Rules 8 and 9 carefully and review these

    Guidelines prior to submitting a training package to the Dispute Resolution Commission.

    Trainers seeking certification must submit a packet containing a detailed agenda

    identifying topics to be covered and trainers who will cover each topic listed. The agenda

    should set out time frames so that the Commission may determine the amount of time

    allocated to each topic as well as the number of hours for the total program. Training

    programs must total at least ten hours. Trainers must also submit to the Commission all

    materials they intend to distribute to participants as handouts, including copies of any

    articles or texts, and copies of any role-play scenarios or ethics case studies to be used.

    Any questions should be directed to the Commission’s office at (919) 783-1574. Packets

    should be mailed to:

    NC Dispute Resolution Commission

    P. O. Box 2448

    Raleigh, NC 27602

    A. TIME FRAMES. The training agenda must total at least ten hours in duration,

    exclusive of breaks and a lunch period, except that a working lunch may count

    toward the ten-hour total. At least six hours of the training agenda shall address

    adult guardianship mediation issues and at least four hours shall address estate

    mediation issues. The training agenda must comply with the detailed curriculum

    and minimum durations set out in Rule 9 and subsection D of these Guidelines.

    The ten-hours of instruction provided for in Rule 9 and discussed in these

    Guidelines is intended to be a minimum only. Trainers are encouraged, if they

    believe it is necessary in order to cover all the topics listed in Rule 9 to provide

    training beyond the 10 hour minimum and to include an open forum,

    demonstrations and role plays that specifically address situations involving

    disputes in adult guardianship and estate matters. Trainers may also add

    additional topics that they wish to cover.

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    B. QUALITY CONTROL. In order to assist the Commission in monitoring the

    effectiveness of this training, certified trainers must agree to provide the Commission with names and addresses of all training program participants within twenty days of completion of a training. Trainers should also advise participants that the Commission will be contacting them at intervals of six and twelve months following their training to seek feedback from them regarding how well their training equipped them to mediate adult guardianship and estate disputes. The information obtained will be used to further refine Rule 9 and these Guidelines. Trainers who have taught courses are invited to contact the Commission with any feedback regarding the Rule 9 requirements, these Guidelines, or any other suggestions for improving adult guardianship and estate mediator training or mediator effectiveness. The Commission reserves the right to have a Commission member or one of its staff in attendance at all or part of any training offered pursuant to these Rules.

    C. NUMBER OF PARTICIPANTS. At no time shall the number of participants

    exceed 40. Trainers must provide sufficient numbers of faculty and other training staff to ensure that participants have a meaningful training experience, including individual attention and an opportunity to actively participate in discussion and role plays, if role plays are a part of the training. Trainers must ensure that the training site is spacious enough to accommodate participants and offer an environment substantially free of distractions and other impediments to learning. If role-plays are to be included as part of the program, sufficient space should be provided for break-out sessions. Drinks and snacks should be provided by the trainer or readily available at the training site.

    D. NATURE OF THE TRAINING. Individuals taking Adult Guardianship and

    Estate Mediator training will have already completed a Commission approved 40-hour course in superior court or family financial mediation. The 40-hour course shall have provided instruction in basic mediation theory and practice and afforded opportunities to observe demonstrations of superior court or family financial mediations and to participate in multiple role-plays. As such, it is expected that adult guardianship and estate training will focus more specifically on information relating to aging, ageism, mental illness, disabilities, family dynamics, principles of guardianship, elder/adult guardianship law, estate/trust law and the other topics listed in Rule 9. Though the focus of this training shall be largely on these substantive areas, trainers are encouraged to exercise their discretion in adding additional time beyond the ten hour minimum for demonstrations, role plays, further exploration of Rule 9 topics, or to add additional topics where trainers believe it is necessary to insure the effectiveness of their training and of the mediators who are attending.

    The Commission intends that trainers have some discretion in determining the content of their training program. However, to insure that the Rule 9 curriculum is fully covered, trainers are required to devote at least the following minimum amounts of time to each of the curriculum topics set forth in Rule 9 and to discuss

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    at least the concepts mentioned below in association with each curriculum

    requirement listed:

    (1) Factors Distinguishing Estate and Guardianship Mediations -- (at least

    10 minutes in duration). Brief discussion of some of the salient

    differences between adult guardianship and estate mediation and other

    types of mediation with which participants may be familiar, including

    superior and district court settlement conferences. Brief discussion of

    issues particularly relevant to adult guardianship and/or estate mediation:

    the need to insure that the respondent in an adult guardianship matter or all

    the heirs in an estate matter are present at the mediation, if possible, and

    included in discussions; the role of the Guardian Ad Litem; the potential

    need for the mediator to be more proactive relative to intake issues, e.g.,

    exploring accessibility concerns with respondents, making sure that all

    individuals with needed information are present at the mediation; and the

    need for the Clerk to approve agreements involving estates or adult

    guardianships.

    (2) The aging process, societal attitudes toward the elderly, mentally ill, and

    disabled -- (at least 45 minutes in duration). Exploration of some of the

    physical and mental changes typically associated with the aging process;

    societal attitudes toward aging and the elderly and toward those with

    mental illnesses or physical disabilities; discrimination against the elderly,

    mentally ill, or disabled; special problems and concerns of the elderly,

    mentally ill, or disabled, e.g., fear of loss of autonomy, isolation,

    exploitation; communicating and working with the elderly, mentally ill, or

    disabled.

    (3) Participation issues -- (at least 45 minutes in duration). Discussion of the

    mediator’s responsibility for intake and participation. (Are individuals

    with necessary information identified and notified of the mediation? Are

    they present at the mediation?); accessibility issues (identifying physical

    limitations that participants may have relative to participation, e.g., need

    for wheel chair ramps, elevators, interpreters, effects of sun-downing);

    importance of involving respondents in adult guardianship matters in the

    discussion to the greatest extent possible; role of the guardian ad litem

    (GAL).

    (4) Medical concerns -- (at least 20 minutes in duration). Medical

    terminology, common diseases and conditions associated with aging,

    mental illness and disability, disease etiology, manifestations of illness

    and effects of medication. (It is the expectation of the Commission that

    prior to the training, participants will be provided with handouts and web

    site addresses that explore the matters listed above in this subsection. The

    Commission recognizes that in a ten-hour course it is impossible to go into

    any level of detail regarding medical issues and students should be advised

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that it is the expectation of the Commission and the trainer that they

    review these materials prior to the course and address any questions they

    may have to their trainers.)

    (5) Financial concerns -- (at least 20 minutes in duration). Financial needs

    associated with aging, mental illness and disability. Costs and fees

    associated with guardianships, estates, trust maintenance and brief

    discussion/ handout regarding tax concerns. Consequence of special needs

    trusts or testamentary trusts. Issues involving the transfer and/or

    leveraging of real property.

    (6) Family dynamics -- (at least 30 minutes in duration). Exploration of

    family dynamics and family stresses particularly as they relate to the care

    of an elderly, mentally ill, or disabled relative, or to the death of a family

    member; including undercurrents such as sibling rivalries, the grieving

    process, and red flags which could indicate neglect or abuse of an elderly,

    mentally ill or disabled relative. (It is the expectation of the Commission

    that prior to the training, participants will be provided with handouts, bibliographies and web site addresses that explore the matters listed in this

    subsection.)

    (7) Capacity issues -- (at least 60 minutes in duration). Identifying triggers

    and situations that commonly lead families to petition for guardianship;

    indicators of self-neglect and of neglect, abuse, and financial exploitation

    by others; care needs and caregiver issues; activities of daily living

    (ADLs), e.g., bathing, eating, toileting, dressing, and grooming and

    independent activities of daily living (IADLs), e.g., shopping, house

    cleaning, money management, and meal preparation. Discussion of

    physical capacity and mental capacity as it relates to decision-making and

    autonomy.

    (8) Availability of community resources -- (at least 15 minutes in duration). Discussion of community, county, state, and federal resources and

    programs available to assist the elderly, mentally ill, and disabled; brief

    overview of relevant state/ federal Medicare and Medicaid provisions;

    brief discussion of long-term care insurance provisions. Red flags

    regarding property transfers and use of assets. Handouts are suggested.

    (9) Adult guardianship law and procedure -- (at least 1 hour in duration).

    Jurisdictional limitations on the Clerk in adult guardianship matters.

    Informal alternatives to adult guardianship, e.g., family and community

    resources, social workers, and visiting nurses. Terminology, relevant

    statutes, and case law; legal standard for appointment of a guardian;

    discussion of competency and incompetency hearings; who can/should

    serve as a guardian or interim guardian; types of guardianships available,

    including interim and limited guardianships and guardianships of the

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    person or estate; responsibilities of guardians; accountings; termination of

    guardianship/restoration of competency.

(10) Estate law and procedure -- (at least 2 hours in duration). Jurisdictional

    limitations on the Clerk in estate matters. Terminology, relevant statutes,

    and case law. Estate planning documents including formal alternatives to

    guardianship, e.g., last wills and testaments, trusts, powers of attorney and

    codicils. Who can serve as a personal representative/trustee; types of

    estates available, including summary administration and small estates;

    responsibilities of the personal representative/trustee; discovery of assets;

    elective share; intestate succession; partition actions; insolvent estates,

    removal of a personal representative/trustee; closing of estates.

(11) Discussion of program Statutes, Rules, and Forms -- (at least 25 minutes

    in duration).

(12) Ethical and conduct issues -- (at least 30 minutes in duration).

    Discussion of statutes requiring the reporting of abuse, neglect or

    exploitation; confidentiality concerns; protecting the interests of absent

    respondents or heirs, need to safeguard against power imbalances during

    mediation. Inclusion of role-plays or case examples allowable.

    E. ENSURING THE QUALITY OF THE FACULTY. An experienced, qualified

    faculty is essential to the success of any training program. It will not be sufficient

    for an applicant to provide a list of potential faculty members. Rather, an

    applicant must specify those individuals who will, in fact, serve as the primary

    faculty. The application must also include a resume for each primary faculty

    member.

While it may theoretically be possible for one individual to possess all the training,

    skills, and knowledge required for the Adult Guardianship and Estate Mediator

    Training Program, it is strongly encouraged that there be at least two primary

    trainers presenting the material. At least one member of the faculty should be

    educated in mediation theory and practice and have significant experience

    mediating in either North Carolina’s superior and/or district court mediated

    settlement conference programs or equivalent experience mediating in the courts

    of another State. Another member should have experience as a geriatrician, social

    worker, or psychologist or have other professional experience working with the

    elderly, disabled, or mentally ill. This trainer should be knowledgeable about

    issues relating to the health care and psychological welfare of the elderly,

    mentally ill, and/or handicapped. There shall also be on the faculty a member(s)

    of the North Carolina State Bar who has experience practicing elder and estate

    law in this State or an attorney licensed in another State with experience

    practicing elder and estate law and who has familiarized him/herself with North

    Carolina statutes, law, and practice.

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    F. ENSURING A NORTH CAROLINA FOCUS. Applicants must demonstrate

    that the training will be focused on the particulars of North Carolina’s program, statutes, rules, and Standards of Professional Conduct for Mediators. If role

    plays are utilized as part of the training, they shall reflect the approach to

    mediation that has evolved in North Carolina’s courts, i.e., they shall involve

    active participation of attorneys, the use of caucus sessions, and envision court-

    ordered participation. Handouts familiarizing attendees with guardianship/elder

    and estate law shall discuss North Carolina statutes and laws. Trainers who have

    been certified in North Carolina, but are conducting their training outside North

    Carolina, must provide those seeking certification in North Carolina with North

    Carolina handouts and must ensure that the legal portion of the training is taught

    by an attorney licensed in North Carolina or by an attorney licensed in another

    State with experience practicing elder and estate law and who has familiarized

    him/herself with North Carolina statutes, law, and practice.

    G. RESPONSIBILITY TO UPDATE COMMISSION. Following certification, all

    trainers shall advise the Commission immediately of any revisions to the agenda,

    changes in the identity of principal trainers, and any other significant revisions to

    the content of course notebooks or other handouts. Trainers shall not conduct any

    additional training sessions until the Commission has approved any such changes.

    Along with their annual certification renewal fees, trainers shall re-submit a

    current agenda for their program yearly. The Commission reserves the right at

    any time to seek additional information from trainers.

    H. ADVERTISING AND REGISTRATION MATERIALS. All materials

    advertising certified training programs to the public must identify the Dispute

    Resolution Commission as the body responsible for mediator certification in

    North Carolina. In addition, the materials must supply a telephone number for the

    Commission and direct interested parties to the Commission for further

    information regarding qualifications for certification. Such materials must also

    contain a disclaimer that successful completion of the program alone is not a

    guarantee of certification. Training taken in another State may be approved if the

    training is in substantial compliance with Rule 9 and these guidelines.

    I. VIDEO TAPE. Unlike the 40-hour Mediated Settlement Conference and Family Financial Settlement mediator training programs that are focused

    primarily on process, this training is focused largely on substantive estate and

    guardianship law and substantive information relating to issues such as the aging

    process and family dynamics. This substantive material lends itself more toward

    a lecture and panel presentation format rather than the demonstration/role-play

    approach that characterizes 40-hour training programs. Since “hands-on”

    participation is not a required element of this training, the Commission has

    determined that it may be offered on video-tape.

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Trainers who offer a tape must encourage participants to watch the tape in its

    entirety and use available technologies in an effort to insure that they do, e.g.,

    imbedding a code at the end of the tape and requiring a viewer to report the code

    in order to receive credit. Trainers must also advise those purchasing or renting

    video-tapes that the Commission is very concerned about stale training and

    anticipates that viewers will watch the tape in its entirely within six months of

    purchase or rental and that those who apply after that period, may be denied

    certification. That certification may be denied if the applicant does not apply

    within six months, must be prominently noted in the material accompanying the

    tape.

Trainers who elect to offer a tape may only offer it for a two-year period from the

    date the tape is initially approved by the Commission. In order to offer a tape

    beyond that time frame, a trainer must apply to the Commission and demonstrate

    that the tape’s content remains current.

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