By: Ryan D. DeMotte, Esq.
Effective as of September 12, 2022, the Court of Common Pleas of Allegheny County will require mandatory mediation for most cases in the Civil Division. This change makes alternative dispute resolution a key part of civil practice in Allegheny County.
Under new Local Rule 212.7, parties must participate in a formal mediation process at least 45 days prior to the commencement of the assigned trial term. The pre-trial deadlines have been revised to accommodate the mediation deadline. Trial terms will now be published in the Pittsburgh Legal Journal 6 months prior to commencement. Under the new pre-trial deadlines in LR 212.1(3), discovery closes 16 weeks before the trial term, with plaintiff’s pre-trial statement due 14 weeks before the trial term and all other parties’ pre-trial statements due 12 weeks prior to start of the trial term. All parties and non-parties (such as insurers) with a financial interest must attend the mediation with full settlement authority.
Parties may be excused from mediation only upon motion for “good cause” to the Calendar Control Judge or by agreement of all parties. Within 7 days of completing or waiving mediation, the plaintiff must file a certification with the Court that the claims were (or will soon be) settled in full or in part, or that the parties waived mediation. A copy must also be sent electronically to the Calendar Control section. Upon motion, the Calendar Control Judge may impose sanctions on parties or counsel for “failure to comply with this rule in good faith.” The mediation requirement does not apply to arbitration appeals, asbestos cases, or landlord-tenant cases.
With this new rule, parties must now factor mediation into their overall litigation strategy. Key issues to consider are the following:
When to mediate: By placing the mediation deadline after the close of discovery and filing of pre-trial statements, the new rule is designed to give litigants flexibility to choose the best time to mediate. Some cases may benefit from early mediation to avoid significant discovery costs, while other cases may require further factual development, such as the exchange of expert reports, before the parties would be ready to mediate. Timing is a key factor in making mediation as productive as possible.
Selecting a mediator: Unlike the mandatory ADR program in federal court in the Western District of Pennsylvania, Allegheny County is not going to maintain a list of certified mediators. Parties will be free to choose their mediator. Key considerations for mediator selection are, among other things, subject matter experience, fees, and overall mediation philosophy.
Mediation advocacy: It is important for parties and counsel to understand the differences between mediation and litigation and adjust their strategy accordingly. Mediation is a confidential, cooperative process that allows the parties to temporarily step outside of the zero-sum litigation process and work to find a mutually-agreed resolution. Thus, to prepare for mediation, parties and their counsel not only need prepare their legal and factual arguments, but they also need to spend time thinking through their real objectives and creative options for resolution that may not be available in litigation. Attorneys play a key role in helping clients understand and prepare for the differences between a mediation and traditional litigation events like depositions and hearings.
If approached with the right mindset, mediation can be an opportunity for quick, cost-effective resolution of disputes. However, to be productive, attorneys and clients must not treat mediation as just another box to check, but instead must seriously prepare for and engage in the process.
Attorneys in Leech Tishman’s Alternative Dispute Resolution Group can serve clients as skilled ADR advocates in all forms of these dispute resolution processes. Our attorneys are highly trained in mediation techniques and have served as both advocates and neutrals in disputes throughout the country. The chair of the firm’s ADR Group, Sally Cimini, has been recognized nationally for her contributions to the development of mediation practice.
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Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in business restructuring & insolvency, construction, corporate matters, employment & labor, estates & trusts, intellectual property, litigation & alternative dispute resolution, and real estate. In addition, the firm offers a wide range of legal services to clients in the aviation & aerospace, cannabis, emerging cyber technologies, energy & natural resources, healthcare, and hospitality industries. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York, Philadelphia, Sarasota, and Washington, D.C.