THE COURTS
Title 255--LOCAL
COURT RULES
BEAVER COUNTY
Local Rules of Civil Procedure; No. 10130 of 2001
[34 Pa.B. 6397]
Order New rules L1042.210 through L1042.223 relating to medical malpractice mediation are approved and adopted as follows and are effective thirty (30) days after publication in the Pennsylvania Bulletin.
The Court Administrator shall transmit certified copies of this order and the rules as follows:
1. Seven copies with the Administrative Office of Pennsylvania Courts;
2. Two copies, as well as a computer diskette containing the text of these rules, to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin;
3. One copy with the Civil Procedural Rules Committee of the Pennsylvania Supreme Court;
4. One copy shall be kept continuously available in the office of the Prothonotary for public inspection and copying; and
5. One copy, as well as a computer diskette containing the text of these rules, to the Law Library of Beaver County.
By the Court
ROBERT E. KUNSELMAN,
President JudgeL. 1042.210. Medical Malpractice Mediation
L. 1042.211. Scope
These rules shall govern mediation in all medical malpractice cases before the Court. These rules must be read in pari materia with Pa.R.C.P. 1041.21, 1042.51. Nothing in these rules shall be construed to deprive the Court of its inherent authority to control cases before it or to conduct settlement conferences, which are distinguished from mediation.
L. 1042.212. Mediation Defined
Mediation is a confidential, informal, non-adversarial process whereby a neutral, third party, known as the ''Mediator,'' assists disputing parties in resolving by agreement some or all of the differences between them. The Mediator has no authority to render a decision; rather the decision-making discretion rests with the disputing parties. The role of the Mediator is to facilitate communication, help clarify interests and issues, identify any further information that may be gathered to assist in making decisions, and foster joint problem solving, in order to enable the parties to come to a resolution that is mutually acceptable to them. The Mediator may offer his or her opinion as to a range of settlement values if the parties so desire.
L. 1042.213. Scheduling and Selection of Cases for Mediation.
(a) Upon the filing of every medical malpractice case, a mandatory status conference shall be scheduled by the Court. The purpose of this conference shall be to determine if a case should be submitted to Mediation pursuant to these Rules. The time of this conference may be rescheduled upon motion of any party with good cause shown.
(1) Plaintiff's counsel shall provide the Court Administrator with a clocked copy of the cover sheet of the Complaint at the time the Complaint is filed. The Court Administrator shall, at the one-year anniversary of the filing of the Complaint, schedule a status conference to determine whether the case is appropriate for mediation. The Court Administrator shall notify counsel of record and/or pro-se litigant of the date and time of the conference. All trial counsel and/or pro-se litigant must attend this conference. Other parties, healthcare providers, insurance carriers, and representatives of the M-Care Fund shall be available by phone.
(b) Upon motion of any party, including a motion pursuant to Pa.R.C.P. No 1041.21, or upon written agreement of the parties, the Court may refer a case to mediation. Any objection to the motion to request mediation must be filed within ten (10) days of the filing of the motion. A case ordered for mediation shall remain on the court docket and the trial list, if applicable.
(c) The Court shall consider the objection that the health care provider has not consented to settlement. The Court may order the parties or their representative, counsel or insurance carriers to attend a status conference to explore the consent to settle issue.
(d) The Court shall consider the objection that the parties have not exchanged experts' reports and can order the parties to do so before Mediation begins.
L. 1042.214. Listing of Approved Mediators.
The Court Administrator shall maintain and make available to the parties a list of all approved mediators. The Court shall select mediators to be placed on the list who meet the following minimum qualifications: (1) admitted to the practice of law in Pennsylvania for at least ten (10) years; (2) at least ten (10) years of experience trying civil cases with considerable experience trying medical malpractice cases; (3) completion of the approved mediation training program offered in Beaver County, or other training verified and approved by the Court after a written submission by the attorney seeking to be approved and, (4) has been determined by the Court to be competent to perform the duties of a mediator. Any attorney desiring to be considered as an approved mediator must make such request in writing to the Court and furnish evidence of meeting the above qualifications. The Court may consider any other mediator agreed upon by the parties.
L. 1042.215. Selection of Mediator; Disqualification.
(a) Within fifteen (15) days of the entry of an order for mediation, or an agreement to mediate, the parties must choose their mediator.
(b) Unless otherwise agreed, the mediator shall be disqualified if:
(1) The mediator has personal knowledge of disputed evidentiary facts related to the mediation;
(2) The mediator or any lawyer with whom the mediator practiced law served as a lawyer for the matter in controversy;
(3) The mediator, or anyone with whom the mediator has a close business or familial relationship, has an economic interest in the matter in controversy.
(c) The Mediator shall disclose any past or present affiliations with any and all parties, including the insurance carriers and/or the M-Care Fund.
L. 1042.216. Compensation of Mediator.
The fees for the mediator shall be a minimum of $250.00 per hour plus reasonable expenses. The parties shall agree to share the costs evenly, unless as part of the settlement, they agree to a different allocation. The parties agree to advance payment of $1,000.00 to the mediator at least five (5) business days in advance of the scheduled mediation. The mediator shall submit to the parties a bill for all time and expenses spent in the case. The party or parties responsible to pay the mediator shall do so no later than thirty (30) days after receipt of the mediator's bill. Mediator fees in excess of the amount deposited by the parties shall be promptly paid in equal proportions or in such other portions as the parties agree. Any unused advance payment shall be promptly refunded to the parties by the mediator.
L. 1042.217. Submissions to Mediator.
Before the first mediation session, the mediator may require the parties to provide to the mediator confidential and/or pertinent information including, but not limited to, pleadings, discovery responses/production, transcripts, expert reports, and/or any other litigation related documents.
L. 1042.218. Time Frame for Conduct of the Mediation.
Unless otherwise agreed to by the parties and the mediator or ordered by the Court, the first mediation session shall be conducted not later than sixty (60) days from the agreement to mediate or order to mediate. Mediation shall be completed within thirty (30) days thereafter.
L. 1042.219. Attendance and Authority; Sanctions.
The parties and persons with authority to enter into a full and complete compromise and settlement of the case on behalf of the parties shall attend the mediation, including the lawyers who will try the case. In an appropriate case, representatives of the M(Care) Fund must either attend in person or be available by telephone during all mediation sessions. If a party or its representative, counsel or insurance carrier fails to appear at the mediation session without good cause, or appears without decision making discretion, the Court, sua sponte, or upon motion, may impose sanctions, including an award of reasonable mediator and attorney's fees and other costs, against the responsible party.
L. 1042.220. Settlement Agreement; Enforcement.
Each settlement is to be confirmed in a written settlement agreement, signed by a party or a party representative with authority to sign. A party representative who signs is presumed to have full authority to bind the party. The settlement agreement is enforceable in the same manner as any other written contract and/or by a motion to enforce the settlement agreement.
L. 1042.221. Confidentiality.
(a) Mediation sessions and discussions constitute settlement conferences under the applicable rules of evidence. Nothing said or disclosed during the mediation sessions, nor any document produced during the sessions that is not otherwise discoverable, shall be admissible as evidence or for impeachment or other purposes in any judicial proceeding.
(b) Pursuant to 42 Pa.C.S.A. § 5949, disclosure of mediation communications and mediation documents may not be required or compelled through discovery or any other process.
(c) Statements made to the mediator privately shall remain confidential unless disclosure to the other side is expressly authorized for the purposes of the mediation conference.
(d) All statements made by the parties or mediator during the sessions and any documents created expressly for or during the session will be inadmissible for any purpose except to enforce an alleged settlement agreement or adjudicate an attorney's lien.
(e) No transcript or other recording may be made of the mediation session.
L. 1042.222. Mediator Immunity.
The mediator shall not be subpoenaed or requested to testify or produce documents by any party in any pending or subsequent litigation arising out of the same or similar matter. Any party, person, or entity that attempts to compel such testimony or production will be liable and shall indemnify the mediator and other protected participants for all reasonable costs, fees and expenses. The mediator shall have the same limited immunity as judges pursuant to the applicable law as it relates to Common Pleas Judges.
L. 1042.223. Report to the Court
Upon the conclusion of the case, the Mediator shall complete and return the Mediator's Report form supplied by the Court Administrator within five (5) days. If a case is settled through Mediation, the case shall be settled and discontinued with the Prothonotary in a timely manner.
[Pa.B. Doc. No. 04-2130. Filed for public inspection December 3, 2004, 9:00 a.m.]
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