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PA Bulletin, Doc. No. 11-650



Amendment of R.C.P. 212.5—Mediation

[41 Pa.B. 2002]
[Saturday, April 16, 2011]


 And Now, this 22nd day of March, 2011, it is hereby Ordered and Directed that the Monroe County Rule of Civil Procedure 212.5, governing the mediation program for civil cases in the Court of Common Pleas of Monroe County, shall be amended as follows. (New material is in bold face text; material to be deleted is in brackets and in bold face text.)

 It is further Ordered and Directed that the District Court Administrator shall:

 a. Shall file seven (7) certified copies of the within Order and Local Rule with the Administrative Office of Pennsylvania Courts.

 b. Distribute two (2) certified paper copies and one (1) computer diskette or CD-ROM copy to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin.

 c. File one (1) certified copy with the Civil Procedural Rules Committee of the Supreme Court of Pennsylvania.

 d. One (1) copy shall be forwarded to the Monroe County Legal Reporter for publication.

 e. Copies shall be kept continuously available for public inspection in the Office of the Monroe County Prothonotary, the Office of the Court Administrator and the Monroe County Law Library.

 f. Revisions shall become effective thirty (30) days after the publication of this order in the Pennsylvania Bulletin.

By the Court

President Judge

212.5. Mediation.

 (a) Certification of Mediators

 (1) The President Judge shall certify as many mediators as determined to be necessary. It is anticipated that 10 to 15 mediators shall be initially certified.

 (2) All mediators will be members of the Monroe County Bar Association.

 (3) An attorney may be certified at the discretion of 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 Monroe County Court of Common Pleas; and

 (iii) he or she has been determined by the President Judge to be competent to perform the duties of a mediator;

 (iv) he or she has professional liability insurance in the minimum amount $100,000 per occurrence and $300,000 in the aggregate per year; and

 (v) he or she has successfully completed a mediation training program approved by the Monroe County Court of Common Pleas.

 (vi) The training requirement may be waived by the President Judge when the qualifications and experience of the applicant are deemed sufficient.

 (4) The court shall solicit qualified individuals to serve as mediators.

 (5) 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.

 (6) A list of all persons certified as mediators shall be maintained in the office of the court administrator.

 (7) 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) Mediator Training

 Unless waived by the President Judge, all mediators shall take at least six hours of instruction in alternative dispute resolution in a program that is eligible for Continuing Legal Education Credit (CLE) for members of the Pennsylvania bar.

 (c) Payment of Mediators

 (1) All terms and conditions of the mediator's fee agreement must be set forth in writing. 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 on an hourly basis at the mediator's regular hourly rate or, in the absence of a standard hourly rate, at the rate of $200.00 per hour. The mediator shall disclose to the parties and/or their attorneys the rate at which his/her charges will be billed.

 (4) Prior to the beginning of mediation, the parties shall pay to the mediator a non-refundable fee representing three hours of the mediator's time. This shall be the minimum fee for the mediator's time regardless of whether the mediation is concluded before three hours of time have been expended.

 (5) Except as provided herein, a mediator shall not accept anything of value from any source for services provided under the court-annexed mediation program.

 (d) Types of Cases Eligible for Mediation

 Every civil action filed in the Monroe 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.

 (e) 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. The order will also direct the mediator to fix the date for the initial mediation session to be a date within sixty (60) days from the date of the order of referral unless otherwise extended by the court.

 (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] Prothonotary/Clerk of Courts shall provide the mediator with a current docket sheet.

 (4) The mediator shall advise the [court administrator] Prothonotary/Clerk of Courts as to which documents in the case file the mediator desires copies of for the mediation session. The [clerk] Prothonotary/Clerk of Courts 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.

 (f) 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) To the extent that space is available and the Executive Board of the Monroe County Bar Association agrees, the mediator may schedule the mediation at the offices of the Monroe County Bar Association, which shall be entitled to charge a reasonable fee for use of its facilities.

 (3) The parties shall not contact or forward documents to the mediator except as directed by the mediator or the court.

 (4) 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.

 (5) 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.

 (6)  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.

 (7) 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.

 (8) No one shall have a recording or transcript made of the mediation session, including the mediator.

 (9) The mediator shall not be called to testify as to what transpired in the mediation.

 (10) Prior to the beginning of the mediation, all parties and their attorneys shall be required to sign a form developed by the Court in which 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 43rd Judicial District, or Monroe County, as a result of their participation in the mediation process.

 (g) 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 under paragraph (d), willful failure to attend the mediation session will be reported by the mediator to the court and may result in the imposition of sanctions.

 (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 under paragraph (d), below, 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.

 (h) Use of mediators for Private Employment

 The Monroe County Bar Association shall maintain a copy of the list of mediators certified by the President Judge. To the extent agreed to by the individual mediators, the list of mediators may be made available to litigants to hire for alternative dispute resolution including arbitrations and mediations. To the extent that the certified mediators are privately hired, the mediators shall make direct arrangements for compensation with the hiring litigants and the work they perform shall not be governed by the rules of the court-annexed mediation program.

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

[Pa.B. Doc. No. 11-650. Filed for public inspection April 15, 2011, 9:00 a.m.]

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