Rule 1042.1 - Professional Liability Actions. Mediation(a)Scope. These rules shall govern mediation in all professional liability cases before the Court.(1) This rule shall not pertain to any case involving a pro se litigant.(b)Selection of Cases for Mediation. Either party, or the Court sua sponte, may file amotion to refer a case to mediation.(1) The Court may also at its discretion refer a case to mediation once it is placed on the trial list.(2) The Court shall consider the objection of any party to mediation that has not consented to settlement provided that such lack of consent shall not prevent the referral of the case to mediation.(c)Selection of Mediator. The Court shall select the mediator, or in the alternative, the parties may agree to the appointment of a mediator.(1) Unless otherwise agreed to by the parties, the mediator shall be disqualified if: (i) the mediator has personal knowledge of disputed evidentiary facts related to the mediation;(ii) the mediator or any attorney with whom the mediator practiced law served as an attorney for the matter in controversy; or(iii) the mediator, or anyone with whom the mediator has a close business or familial relationship, has an economic interest in the matter in controversy.(2) The mediator shall disclose any past or present affiliations with any and all parties, including the insurance carriers and/or the M-Care Fund.(d)Compensation. The fee of the mediator shall be determined by the Court. The costs shall be apportioned equally among the parties, unless otherwise agreed to by the parties or ordered by the Court. The mediator shall submit an itemized bill to the parties for costs, expenses, and time. Failure to remit payment within twenty (20) days after receipt of the bid may result in a rule to show cause why sanctions shall not be imposed.(e)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.(f)Time Frame for Conducting 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 laterthan sixty (60) days from the agreement to mediate or order to mediate.(g)Attendance and Authority; Sanctions. The parties, a representative of the defendant's insurance carrier with authority to enter into a full and complete settlement of the case on behalf of the parties, and trial counsel shall personally attend the mediation. A representative of the M(Care) Fund, with full decision making authority, shall attend in person, the mediation. If any of the above individuals or representatives fails to appear at the mediation session without good cause, or appears without full authority, 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.(h)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.(i)Confidentiality and Immunity. The mediation shall be confidential and no record shall be made, except as provided in this rule or as ordered by the Court. 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 shall indemnify the mediator and other protectedparticipants 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. Comment: Confidentiality of mediation communications and mediation documents are subject to the protections and exceptions prescribed in 42 Pa. Con. Stat. § 5949.
(j)Report. If the case is not settled, the mediator shall provide the Court with a detailed report outlining: (1) the mediator's assessment of liability;(2) the mediator's assessment of damages;(3) the mediator's opinion regarding the potential range of a verdict and the settlement value of the case;(4) Plaintiff's final settlement demand;(5) Defendant's final settlement offer; and(6) the mediator's recommendation regarding settlement of the case. A copy of the report shall be provided to and maintained by the Court Administrator until the case is closed.Amended effective 1/1/2022