This is the second column I have written about Marie Winkelman. Read the first column by clicking here. Marie is the author of a book about her experiences as a Holocaust survivor in Poland titled “Keeping A Promise: To Tell My Story of Survival in Warsaw During WW II.”
Marie is another victim of financial guardianship abuse. The first I wrote about was Al Katz, the father of Beverly Newman, another Holocaust Survivor.
What is at stake here? A woman’s life, liberty and her property valued in excess of $3 million… in this case, a Holocaust Survivor who in childhood was robbed of her property and stability and now is re-living the traumas of betrayal and asset seizure. Who benefits from Marie’s guardianship? Robert and Corinne Szychowski and the State of Florida’s guardianship system.
What is happening? The systematic financial abuse of an elder.
Audrey Bear, Marie’s lawyer, at a court hearing before Sarasota County Probate Court Judge Deno Economou on January 8, 2014 agreed to “mediate her clients capacity” with lawyers representing Robert Szychowski. This is not what Marie wants according to Beverly Newman, Director of the Al Katz Center.
Emails were sent to Chief Judge Lee E. Haworth, 12th Circuit Court and to Elida Mujic, Client Relations Coordinator, FL Department of Children and Family Services requesting any legal authority for mediation in matters of capacity but no legal authorities were given.
Chief Judge Haworth replied, “Any action or issue in a case can be ordered to mediation. But it is not like arbitration where the arbitrator’s decision is binding on the parties. A mediated agreement cannot be forced upon the participants. They must consent to any resolution. It is designed to avoid protracted and painful litigation and can often serve as a way for parties to find remedies beyond those the court can fashion. Since the discussions are confidential, not to be disclosed upon penalty of contempt, it allows for a free exchange of ideas and concerns with the consideration of evidence that may be inadmissible at a trial. The mediator is a neutral party whose role is to explore all reasonable grounds for settlement. A surprising number of intractable appearing cases have been settled at mediation, but only when parties agree. It only takes one to veto. If the mediation is at impasse, it proceeds to trial, the judge none the wiser about what was discussed in the mediation conference. In regard to mediating capacity, since capacity is a fluid, evolving condition, it might be daunting to construct a mediated agreement of long lasting duration, or one acceptable to all sides. But I see no legal impediment to the parties being required to make an effort to do so.”
Ms. Mujic stated, “I would encourage you to contact 12th Circuit Court office or an attorney concerning any legal assistance with Ms. Winkleman’s situation. I am not able to provide you with any legal advice. If you are willing to provide me with additional information concerning Ms. Winkleman, I will do my best to assist you.”
In an email Beverly Newman questioned using mediation to deal with Marie’s case. Newman points out the following:
1. Mediation is a completely closed legal proceeding, with no recordings or records allowed and confidentiality forms that must be signed prior to the mediation.
2. In Marie’s mediation of November 25, 2013, one of the signatories to the mediated settlement agreement described it as “blackmail.”
3. There is no due process in mediation, as there is no sworn testimony of witnesses, no judge present, no public record, no evidence put on the record, and no cross-examination of witnesses.
4. Marie’s attorney (Audrey Bear) was hired to litigate the Court’s incapacity and guardianship order dated December 3, 2013, but she has refused to set for hearing her own motion to vacate said order and chose mediation instead.
5. Fl. Stat. 744.331 states:
(5) ADJUDICATORY HEARING.—
(a) Upon appointment of the examining committee, the court shall set the date upon which the petition will be heard. The date for the adjudicatory hearing must be set no more than 14 days after the filing of the reports of the examining committee members, unless good cause is shown. The adjudicatory hearing must be conducted at the time and place specified in the notice of hearing and in a manner consistent with due process.
(b) The alleged incapacitated person must be present at the adjudicatory hearing, unless waived by the alleged incapacitated person or the person’s attorney or unless good cause can be shown for her or his absence. Determination of good cause rests in the sound discretion of the court.
(c) In the adjudicatory hearing on a petition alleging incapacity, the partial or total incapacity of the person must be established by clear and convincing evidence.
6. Marie Winkelman never had an adjudicatory hearing in which any evidence was presented on her behalf.
7. The settlement agreement that the court adopted in its order was not seen by Marie until after it was signed and was never explained to her by her former attorney, Barry Spivey. The court held an incapacity and guardianship hearing on said mediated agreement on December 2, 2013, at which Marie was not present since her attorney (Spivey) did not inform her of said hearing.
The question: Is mediation the proper way for Marie to protect her life, liberty and property or is litigation a better pathway?