Fayette Cnty. C.P. Local Rules and Administrative Orders - Amended March 12,... Rule 212.5

(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. Not withstanding 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 two hundred and fifty

($250.00) dollars per hour, divided equally among all of the parties to the mediation. A

deposit of two hundred and fifty ($250.00) 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.

(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 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

NOTE: Adopted July 30, 2010, effective September 20, 2010. Amended

August 30, 2016, effective October 16, 2016. Amended September 19, 2022,

effective October 31, 2022.