PA Update – WDPA revises ADR rules
The United States District Court for the Western District of Pennsylvania revised its Alternative Dispute Resolution Policies and Procedures, which are effective as of January 1, 2025. The policy is largely similar to the previous version, but there are several important additions and revisions. A link to the new Policies and Procedures are available here.
Neutrals
First, the new WDPA ADR policies provide more detailed information related to pro bono mediations. Should a party demonstrate that they are unable to pay their pro rata share, the court will appoint a mediator to serve pro bono. All parties who are able to pay their share must do so. Approved pro bono mediators must agree to perform one pro bono mediation per year by random selection where at least one party is appearing pro se.
Further, the new policy delineates the annual requirements for all court approved neutrals, in addition to the Qualifications and Training required by the previous version. All neutrals must now complete an annual survey to confirm participation, update contact information, and express willingness to accept one pro bono mediation per year. Failure to respond will result in removal from the pro bono mediation court appointment list.
Prior to an ADR session, a mediator or neutral must submit a written agreement to all parties, requiring all parties to sign confirming agreement to mediate or engage in early neutral evaluation, a confidentiality agreement, and clarifying that the neutral is not counsel for any party and fees to be paid.
No judicial officer, including a District or Magistrate Judge, will be assigned as a neutral for the Early ADR Program.
Participation at ADR Session
Unlike the previous policy, the new rules do not outline the formal process for a Necessary Party to be excused from the ADR session. All remote participation is at the discretion of the appointed neutral. However, if a party is excused from in-person attendance, that party must be available by telephone or video.
Importantly, the Court made its expectation clear that all parties ordered to mediate must participate in Good Faith and with full and complete settlement authority, where appropriate. Good Faith is defined in the updated policy as:
the duty of the parties to meet and negotiate with a willingness to reach agreement, full or partial, on matters in dispute. If parties and/or party representatives with full settlement authority participate, consider and respond to the proposals made by each other, and respect each other’s role by not acting in a manner which is arbitrary, capricious or intended to undermine the mediation process, the parties are deemed to be acting in good faith.
If a participating party intends to appear without making a demand or settlement offer, or if they intend to wait until the disposition of a motion(s), that intent must made explicitly clear in writing to the mediator and all parties no later than 15 calendar days prior to the mediation session. The parties then can elect to move forward with the mediation session or proceed to Early Neutral Evaluation.
If a party does not participate in Good Faith, counsel cannot immediately file for sanctions. Preliminary steps, outlined in Appendix A of the updated policy, must be followed prior to filing. First, if a party intends to file a motion for sanctions regarding the ADR session, the party must serve a file-ready copy of their proposed motion to the other party and attempt to resolve the dispute within 14 days of service. If the parties are unable to resolve the dispute, counsel must then:
1) Prepare a certificate attesting that the parties met and discussed, either in person or by telephone, the content of the proposed motion for sanctions;
2) Attest that the parties were unable to resolve the issue(s) raised in the proposed motion after thorough discussions, and;
3) State whether they agree (or disagree) that confidential information may be implicated in the resolution of the proposed motion.
The moving party must also file a “Notice of Intent to File Motions for Sanctions.” The format of this Notice of Intent can be found in Appendix A of the policy. The Notice shall not include any “references to the specific factual predicate of the alleged breach and shall maintain the confidentiality of the ADR process.”
Once the Notice is filed, the assigned judge will decide whether to hear the motion or to refer it to the ADR Judge or designee for resolution. If the dispute is still not resolved, leave must be granted through entry of an order by the judge handling the dispute. If leave is granted, the motion may then be filed. If any part of the motion will reveal Confidential Information, as outlined in Section VI of the updated policy, the movant must seek leave to file those parts under seal.
Mediation participation
The previous policy did not require written mediation statements. The new policy instead leaves this requirement in the discretion of the mediator.
Early Neutral Evaluation
Written submissions must be submitted directly to the evaluator and served on all other parties pursuant to the deadlines established by the evaluator. The written submission content requirements are consistent with the previous policy.
Additional ADR Processes
The new policy removed the policy related to the Court appointing special masters for any function.
Additionally, the policy permitting non-binding summary bench or jury trials was also removed.