THE COURTS
FAYETTE COUNTY
Local Rule 212.5: Mediation; No. 1702 of 2016 GD
[46 Pa.B. 5897]
[Saturday, September 17, 2016]
Order And Now, this 30th day of August, 2016, pursuant to Pennsylvania Rule of Judicial Administration 103(d), it is hereby ordered that Local Rule 212.5 is amended to read as follows.
The Prothonotary is directed as follows:
(1) Two copies and CD-ROM of the Local Rule shall be distributed to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin.
(2) One copy of the Local Rule shall be filed with the Administrative Office of Pennsylvania Courts.
(3) One copy of the Local Rule shall be sent to the Fayette County Law Library and the Editor of the Fayette Legal Journal.
The Administrative Office of Fayette County Courts is directed as follows:
(1) Publish a copy of the Local Rule on the website of the Administrative Office of Fayette County Courts.
(2) Thereafter, compile the Local Rule within the complete set of local rules no later than 30 days following the publication in the Pennsylvania Bulletin.
The amendment of the previously listed rule shall become effective thirty (30) days after publication in the Pennsylvania Bulletin.
By the Court
JOHN F. WAGNER, Jr.,
President JudgeRule 212.5. Mediation.
(a) Certification of Mediators.
(1) The President Judge shall certify as many mediators as determined to be necessary.
(2) All mediators will be members of the Fayette County Bar Association.
(3) An attorney may be certified by the President Judge as a mediator if:
(i) he or she has been a member of the Pennsylvania bar for a minimum of ten (10) years;
(ii) he or she has been admitted to practice before the Fayette County Court of Common Pleas;
(iii) he or she has been referred to the President Judge by the Civil Rules Committee of the Fayette County Bar Association. Notwithstanding such referral, the President Judge may nonetheless certify an attorney as a mediator.
(iv) he or she has been determined by the President Judge to be competent to perform the duties of a mediator;
(v) he or she has professional liability insurance in the minimum amount of a $300,000.00 single limit policy.
(4) Each individual certified as a mediator shall take the oath or affirmation prescribed by 42 Pa.C.S.A. § 3151 before serving as a mediator.
(5) A list of all persons certified as mediators shall be maintained in the office of the Court Administrator.
(6) A member of the bar certified as a mediator may be removed from the list of certified mediators by the President Judge for any reason.
(b) Payment of Mediators.
(1) The parties shall pay the mediator directly. The court assumes no responsibility for the supervision or enforcement of the parties' agreement to pay for mediation services.
(2) Any charges relating to the mediator's services shall be shared equally by the parties.
(3) The mediator shall be paid a mediation fee of One Hundred and Seventy-Five ($175.00) Dollars per hour, divided equally among all of the parties to the mediation. A deposit of One Hundred and Seventy-Five ($175.00) Dollars shall be paid by each party within twenty (20) days of the order directing mediation. Failure to pay the deposit by all parties shall result in the cancellation of the mediation and shall subject the offending party to sanctions pursuant to Pa.R.Civ.P. 4019. Failure to pay the balance due twenty (20) days after receipt of the mediator's bill shall subject the offending party to sanctions pursuant to Pa.R.Civ.P. 4019.
(4) Except as provided herein, a mediator shall not accept anything of value from any source for services provided under the court-annexed mediation program.
(c) Types of Cases Eligible for Mediation.
Every personal injury, medical or professional malpractice, wrongful death or damage to property action filed in the Fayette County Court of Common Pleas is eligible for mediation, except any case which the assigned judge determines, after application by any party or by the mediator, is not suitable for mediation.
(d) Voluntary Mediation.
The parties to any civil action, with the exception of arbitration and domestic relations/custody cases, may voluntarily submit the case to mediation by filing a joint motion of all parties with the assigned judge in accordance with the local Motions Court procedure.
(e) Mandatory Mediation.
The assigned judge may order a case to mandatory mediation at any time. All cases selected for mandatory mediation by the assigned judge, and which are not settled or referred to arbitration, shall be given preference pursuant to Pa.R.Civ.P. 214(2) on the trial list of the assigned judge.
(f) Mediation Conference Scheduling.
(1) When the court makes a determination that referral to mediation is appropriate, it shall issue an order referring the case to mediation, appointing the mediator, directing the mediator to establish the date, time and place for the mediation session and setting forth the name, address, and telephone number of the mediator.
Within ten (10) days of his or her assignment, the mediator shall notify all parties and the Court Administrator of the date, time and place of the mediation, which shall be within forty-five (45) days of the assignment.
(2) The mediation session shall be held before a mediator selected by the assigned judge from the list of mediators certified by the President Judge.
(3) The court administrator shall provide the mediator with a current docket sheet.
(4) The mediator shall advise the court administrator as to which documents in the case file the mediator desires copies of for the mediation session. The clerk shall provide the mediator with all requested copies at no charge to the mediator. However, the assigned Judge, in his or her discretion, may require that the parties share in the cost of providing the necessary copies.
(5) Any continuance of the mediation session beyond the period prescribed in the referral order must be approved by the assigned judge.
(6) A person selected as a mediator shall be disqualified for bias or prejudice as if he or she were a district justice or judge. A party may assert the bias or prejudice of an assigned mediator by filing an affidavit with the assigned judge stating that the mediator has a personal bias or prejudice. The judge may, in his or her discretion, end alternative dispute resolution efforts, refer the case to another mediator, refer the case back to the original mediator or initiate another alternative dispute resolution mechanism.
(g) The Mediation Session and Confidentiality of Mediation Communications.
(1) The mediation session shall take place as directed by the court and the assigned mediator. The mediation session shall take place in a neutral setting designated by the mediator.
(2) The parties shall not contact or forward documents to the mediator except as directed by the mediator or the court.
(3) At least ten (10) days prior to the Mediation, the parties and/or their attorneys shall be required to prepare and submit a Confidential Position Paper disclosed only to the mediator in the format attached or as modified by the mediator or the assigned judge. The Confidential position paper shall not become a part of the court record and shall be destroyed at the conclusion of the mediation.
(4) If the mediator determines that no settlement is likely to result from the mediation session, the mediator shall terminate the session and promptly thereafter file a report with the assigned Judge stating that there has been compliance with the requirements of mediation in accordance with the local rules, but that no settlement has been reached.
(5) In the event that a settlement is achieved at the mediation session, the mediator shall file a report with the assigned Judge stating that a settlement has been achieved. The order of referral may direct the mediator to file the report in a specific form.
(6) Unless stipulated in writing by all parties and the mediator or except as required by law or otherwise ordered by the court, all discussions which occur during mediation shall remain strictly confidential and no communication at any mediation session (including, without limitation, any verbal, nonverbal or written communication which refers to or relates to mediation of the pending litigation) shall be disclosed to any person not involved in the mediation process, and no aspect of the mediation session shall be used by anyone for any reason.
(7) No one shall have a recording or transcript made of the mediation session, including the mediator.
(8) The mediator shall not be called to testify as to what transpired in the mediation.
(9) Prior to the beginning of the mediation, all parties and their attorneys shall be required to sign a form developed by the Court wherein the parties agree:
(i) to the terms of the mediation; and
(ii) to waive any professional liability claims that they might assert against the mediator, the assigned Judge, the Court of Common Pleas of the 14th Judicial District, or Fayette County, as a result of their participation in the mediation process.
(h) Duties of Participants at the Mediation Session.
(1) Parties. All named parties and their counsel are required to attend the mediation session, participate in good faith and be prepared to discuss all liability issues, all defenses and all possible remedies, including monetary and equitable relief. Those in attendance shall possess complete settlement authority, independent of any approval process or supervision, except as set forth in subparagraphs (A) and (B) below.
Unless attendance is excused, willful failure to attend the mediation session will be reported by the mediator to the court and may result in the imposition of sanctions pursuant to Pa.R.Civ.P. 4019.
(A) Corporation or Other Entity. A party other than a natural person (e.g., a corporation or association) satisfies this attendance requirement if represented by a person (other than outside counsel) who either has authority to settle or who is knowledgeable about the facts of the case, the entity's position, and the policies and procedures under which the entity decides whether to accept proposed settlements.
(B) Government Entity. A unit or agency of government satisfies this attendance requirement if represented by a person who either has authority to settle or who is knowledgeable about the facts of the case, the government unit's position, and the policies and procedures under which the governmental unit decides whether to accept proposed settlements. If the action is brought by or defended by the government on behalf of one or more individuals, at least one such individual also shall attend.
(2) Counsel. Each party shall be accompanied at the mediation session by the attorney who will be primarily responsible for handling the trial of the matter.
(3) Insurers. Insurer representatives are required to attend in person unless excused, if their agreement would be necessary to achieve a settlement. Insurer representatives shall possess complete settlement authority, independent of any approval process or supervision.
(4) Request to be Excused. A person who is required to attend a mediation session may be excused from attending in person only after a showing that personal attendance would impose an extraordinary or otherwise unjustifiable hardship. A person seeking to be excused must submit, no fewer than ten (10) days before the date set for the mediation, a written request to the mediator, simultaneously copying all counsel. The written request shall set forth all considerations that support the request and shall indicate whether the other party or parties join in or object to the request. A proposed order prepared for the signature of the Judge shall be submitted to the mediator with the request. The mediator shall promptly consider the request and shall submit the proposed order to the Judge with a recommendation that the request be granted or denied. In the absence of an order excusing attendance, the person must attend.
Where an individual requests to be excused from personal participation at the mediation, a preference shall be given to attending by telephone at the expense of the excused party rather than complete excusal from the mediation.
(i) Mediator's Report.
Within fifteen (15) days of the mediation, the mediator shall send to the assigned judge a mediation report which shall advise that court whether the case has settled. If not, the mediation report shall set forth the following:
(1) plaintiff's final settlement demand;
(2) defendant's final settlement offer;
(3) Mediator's assessment of liability;
(4) Mediator's assessment of damages;
(5) Mediator's opinion regarding potential range of verdict and settlement value of case; and
(6) Mediator's recommendation regarding settlement of case.
The mediator shall provide all parties and the Court Administrator with a copy of the mediation report.
Appendix A: Form for Confidential Position Paper
Confidential Position Paper Case Caption:
Docket #:
Assigned Judge:
Date of Report:
A. Summary of Critical Facts.
B. Insurance Coverage
C. Prior demands and offers of settlement
D. Issues that may Assist the Mediator, with citations
E. Medical and Expert reports
F. Itemized list of damages
G. succinct statement of position regarding liability and damages
[Pa.B. Doc. No. 16-1600. Filed for public inspection September 16, 2016, 9:00 a.m.]
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