Rule 9019-2 Alternative Dispute Resolution.

(a)     Setting Mediation.  The court may set a case for mediation provided consideration is given to any reasons advanced by the parties as to why such mediation would not be in the best interest of justice. Once set for mediation, the matter can be removed from mediation by the court or on application by the mediator.

(b)     Request for Mediation.  The parties may request a case be assigned by the court to mediation by completing and filing L.B.F. 9019-2.

(c)     Assigning Matters and Cases.  The court may assign to mediation any adversary proceeding or contested matter or any issue within such adversary proceeding or contested matter.

(d)     Certification of Mediators.

          (1)     The court may certify as many mediators as determined to be necessary under this rule.

          (2)     An individual may be certified to serve as a mediator if:

                    (A)     he or she has been a member of the bar of the highest court of a state or the District of Columbia for a minimum of five (5) years;

                    (B)     he or she is admitted to practice before this court;

                    (C)     he or she has successfully completed a mediation training program established or recognized by the District Court or the Bankruptcy Court for the Middle District of Pennsylvania; and

                    (D)     he or she has been determined by the appointing court to be competent to perform the duties of a mediator.

          (3)     The court will solicit qualified individuals to serve as mediators.

          (4)     Each individual certified as a mediator must take the oath or affirmation prescribed by 28 U.S.C. § 453 before serving as a mediator.

          (5)     The clerk must maintain a list of all persons certified as mediators.

          (6)     The appointing judge may remove anyone from the list of certified mediators for cause.

          (7)     Persons acting as mediators under this rule are assisting the court in performing its judicial function. They must be disqualified for bias or prejudice as provided by 28 U.S.C. § 144 and must disqualify themselves in any action in which they would be required under 28 U.S.C. § 455 to disqualify themselves if they were a justice or judge.

(e)     Compensation and Expenses of Mediators.  A mediator who accepts a case for mediation initially volunteers the time expended to prepare for and conduct a mediation conference or conferences lasting up to a total of four (4) hours. After completion of four (4) hours service, the mediator may either

          (1)     continue to volunteer the mediator’s time; or

          (2)     give the mediation parties the option to agree to pay the mediator his prevailing hourly rate for bankruptcy services for the additional time spent on the mediation. The parties must each pay a pro rata share of the mediator’s compensation, unless they agree among themselves to a different allocation. A motion to enforce a party’s obligation to compensate a mediator is governed by F.R.B.P. 9014.

(f)     Frequency of Service.  An individual certified as a mediator will not be called upon more than twice in a twelve (12) month period to serve as a mediator without the prior approval of the mediator.

(g)     Scheduling Mediation Conference.

          (1)     Upon referral of a case to mediation, the court will serve the order of referral to the mediator, all counsel, and any unrepresented party directing the mediator to establish the date, place, and time of the mediation session. The order will include the address, telephone number, email address and facsimile number of the mediator, counsel, and unrepresented parties. The date of the mediation session must be a date within thirty (30) days from the date of the order of referral.

          (2)     The appointment is effective unless the designee rejects the appointment within seven (7) days.

          (3)     Upon docketing of the order of referral to mediation, the clerk must transmit to the mediator, either by email or regular mail, a copy of the docket sheet that reflects all filings to date. The mediator may identify to the clerk those filed documents which the mediator wishes to review for the mediation. Unless otherwise ordered by the court, the clerk shall provide the mediator with electronic or paper copies of the requested documents free of charge.

          (4)     A mediator may change the date and time for the mediation session if the session takes place within forty-five (45) days of the date of the order of referral. Any continuance of the session beyond forty-five (45) days must be approved by the court.

(h)     The Mediation Process.

          (1)     Not later than seven (7) days before the initial conference, each party must deliver or send a facsimile or email to the mediator a mediation conference memorandum no longer than two (2) pages, summarizing the nature of the case and the party’s position on:

                    (A)     the major factual and legal issues affecting liability and damages;

                    (B)     the relief sought by each party; and

                    (C)     the position of the parties relative to settlement.

          (2)     The memoranda required by this subdivision are solely for use in the mediation process and are not to be filed with the clerk.

(i)     The Mediation Session.

          (1)     The mediation session must take place on the date and at the time set forth by the mediator. The mediation session must take place at a neutral setting as designated by the mediator that may include the mediator’s office. A party must not contact or forward any document to the mediator unless the mediator requests the information or unless as otherwise provided under these rules.

          (2)     Counsel primarily responsible for the case and any unrepresented party must attend the mediation session. All parties or principals of parties with decision-making authority must attend the mediation session in person, unless attendance is excused by the mediator for good cause shown. Willful failure to attend the mediation conference must be reported to the court and may result in the imposition of sanctions. The participants must be prepared to discuss:

                    (A)     all liability issues;

                    (B)     all damage issues;

                    (C)     all equitable and declaratory remedies if such are requested; and

                    (D)     the position of the parties relative to settlement.

          (3)     Unless otherwise provided in this Rule, and as may be necessary to the reporting of or the processing of complaints about unlawful or unethical conduct, nothing communicated during the mediation process - including any oral or written statement made by a party, attorney, or other participant, and any proposed settlement figure stated by the mediator or on behalf of any party - may be placed in evidence, made known to the trial court or jury, or construed for any purpose as an admission. No party may be bound by anything done or said during the mediation process except to enforce a settlement agreement or any other agreement achieved in that process.

          (4)     In the event the mediator determines that no settlement is likely to result from the mediation session, the mediator must terminate the session and promptly send a report to the court that there has been compliance with the requirements of these paragraphs, but that no resolution has been reached. In the event that a settlement is achieved at the mediation session, the mediator must send a written report to the judge to whom the case is assigned stating that a settlement has been achieved. The parties are responsible for the circulation of any required notice of settlement.

          (5)     Notwithstanding the above paragraph, the mediator must submit a written report to the court advising the court of the status of the mediation within sixty (60) days after the order of appointment of the mediator.

          (6)     No one may have a recording or transcript made of the mediation session, including the mediator, unless otherwise agreed to by the parties.

          (7)     The mediator cannot be called as a witness at trial.

(j)     Neutral Evaluator.  Anytime after an action or proceeding has been filed, the action may be referred to a neutral evaluator to be selected with the approval of the parties.

(k)     Relationship to Other Procedures.  Nothing in this Rule modifies the provisions of Fed.R.Civ.P. 16 and 26, or L.B.R. 7016-1 or any order of court, nor does it preclude the use of any kind of mediation outside of the mediation process established by this Rule or the use of any other means of alternative dispute resolution.

Part: 
Part IX - General Provisions