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PA Bulletin, Doc. No. 05-49

THE COURTS

DELAWARE COUNTY

Adoption of Local Rule 1042.21 Medical Professional Liability Actions; Motions for Mediation; 00-3708

[35 Pa.B. 251]

Order

   And Now, to wit, this 20th day of December, 2004, it is hereby Ordered that Delaware County Local Rule 1042.21 is Adopted and shall read as follows:

   (A)  The ADR Committee of the Delaware County Bar Association shall prepare a list of available co-mediators it deems appropriate for mediation in medical professional liability actions subject to approval by the Court. The list shall be updated annually by the Committee and resubmitted to the Court for approval.

   (B)  The Court Administrator shall designate the assigned co-mediators upon request by the Court.

   (C)  In the event the Court approves a motion for mediation and only if the parties have not agreed to a private mediator(s), the Court shall request the Civil Court Administrator to designate co-mediators. The Court shall thereafter order mediation, including in its Order the name, address, and telephone number of the co-mediators. A copy of the Court order shall be forwarded to the Civil Court Administrator, and to the selected co-mediators. If a co-mediator has a conflict of interest, or is unable to serve for any reason, then the co-mediator shall immediately notify the Civil Court Administrator for purposes of further assignment.

   (D)  The co-mediators shall confer with each other and all counsel to establish the date, time, and place of the mediation session pursuant to the Court's Order. Unless specifically requested by the co-mediators, the parties shall not contact or forward documents to the co-mediators. Counsel who are primarily responsible for the case and any unrepresented party shall attend the mediation session. All parties, insurers and principals of parties of decision-making authority must attend the mediation session in person, unless their attendance is excused by the co-mediators for good cause shown; in such an event, they must be available by telephone during all mediation sessions. All parties, insurers, principals, and counsel must be prepared to fully discuss all liability and damage issues and to participate in meaningful settlement negotiations.

   (E)  The co-mediators, (generally comprised of an experienced member of the Plaintiff's Bar and an experienced member of the Defense Bar), will jointly conference the case, attempting to facilitate settlement (utilizing standard mediation practices, including shuttle diplomacy, caucusing, etc.), or they may give a neutral evaluation. The co-mediators cannot be called as a witness as to the mediation of any issue arising therefrom. All communications among the co-mediators, the parties, and/or their counsel shall remain confidential. Any comments and/or opinions expressed by the co-mediators are advisory only. All counsel, parties, their agents and/or representatives shall comply with these directives, including the foregoing terms and conditions contained in this local Rule.

   (F)  No mediation proceedings, including any statement made or writing submitted by a participant, shall be disclosed to any person who is not directly involved with the mediation session. The parties' settlement positions and/or statements shall not be disclosed to the trial Judge unless mutually agreed to by the parties; and, in the event the case involves a non jury trial, under no circumstances shall the parties' settlement positions and statements be disclosed to the assigned Judge. No transcript or other recording may be made of the mediation session, and the mediation proceeding shall not be used by any adverse party for any reason including the litigation at issue.

   (G)  The moving party who sought mediation shall notify the Court and the Civil Court Administrator in writing at the conclusion of the mediation process indicating whether or not a settlement has been reached.

   (H)  The moving party shall pay the cost of the co-mediators and shall pay each co-mediator directly. The rate of compensation for each co-mediator is $150.00 per hour. The party who initially filed the motion for mediation shall also pay a $50.00 non-refundable administrative fee paid to the Delaware County Bar Association upon assignment of the co-mediators by the Court.

By the Court

KENNETH A. CLOUSE,   
President Judge

[Pa.B. Doc. No. 05-49. Filed for public inspection January 7, 2005, 9:00 a.m.]


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