February 2025: Court-Ordered Mediation in Pennsylvania: Don't Just Check the Box

Author: Brooks Foland, Foland Mediation Services
717.645.3112

Many federal and state courts in Pennsylvania strongly encourage, if not require, parties to submit their disputes to mediation or some other form of ADR before listing their cases for trial. This is so despite the fact that mediation by design is a voluntary, non-binding process for parties to attempt to resolve their own conflicts. Whether voluntary or court-ordered (or court-encouraged), no one can dispute the financial, physical and emotional upsides of parties’ attempting to resolve their own differences outside of protracted and costly litigation and where the results are often uncertain.  

Some courts have opt-out or waiver procedures in their mandatory mediation rules, often requiring a showing of “good cause” to avoid mandatory mediation. Most of the mandatory mediation rules do not apply to arbitration cases, asbestos cases or to landlord-tenant cases, however. Additionally, family law cases in Pennsylvania have their own track for ADR and are thus outside the scope of this article.  

In some courts, the parties are free to choose their own mediator.  In others, the mediator must be selected from a list of approved or certified mediators. In either case, mediation is a confidential and collaborative process that provides an opportunity for parties to step outside of the zero-sum litigation process and work to find a mutually-acceptable solution to their problems or issues.  Mediation also permits creative solutions (e.g., apologies, job reinstatements, policy changes and the like) that litigants can only get through mutual agreement and not from a judge or jury.  

If approached with the right mindset and with proper preparation by counsel, the parties, and the mediator, mediation can be faster and much more cost-effective than litigation. The emotional and physical toll on parties imposed by traditional litigation and trial, which cannot be overstated, can be avoided when a case is settled pre-trial by mediation or other ADR processes.

The purpose of this article is to encourage counsel and parties to make the most of this opportunity for mediation, even if court-ordered. Be prepared, be engaged in the process and go to mediation with an eye towards the possibility of early resolution of some or all of the conflicts which exist between the parties.  

Consider some of the following suggestions to make the best use of this opportunity, including utilizing the skills and talents of the selected or appointed mediator:

1. Preparation. Prepare for any court-ordered mediation like you would any private mediation. Treat the process seriously. Use maximum candor with the tribunal when discussing mediation.  If possible, work with the Judge on scheduling mediation when the parties have a realistic chance for settlement. File a motion to extend the mediation deadline if necessary.  

Draft briefs or memos, outlining the facts, law and key issues for the mediator.  Produce key expert reports and other papers in support of liability and damages, but don’t drown the mediator with voluminous medical records or deposition transcripts. Instead, share summaries of key documents and key witness testimony. Share your memo or brief with the other side. If some information is confidential, share that information privately with the mediator in a separate writing or communication. Be careful with messaging in your written submissions. It is normal and expected to point out the strengths of your case to the mediator and to the other side (if they are shared). But if your submissions are too adversarial, your client may wonder why you are advocating for settlement in an airtight case.  

If not scheduled by the mediator, request a pre-mediation call with the mediator to discuss important issues in the case, including sensitive facts, issues involving clients or key witnesses, or problems that you may be having with some aspect of the case.

Joseph Barrett, ADR Coordinator of the United States District Court, Middle District of Pennsylvania, believes that preparation is key to the success of mediation. In his experience, most attorneys come to the mediation prepared to discuss the finer points of the case, including ideas and strategies for the potential resolution of the claims or issues in the case. But Mr. Barrett warns that it is a mistake to take for granted that this will occur. For that reason, Mr. Barrett believes that getting the lawyers’ “eyes on the case” well before mediation, through emails and/or phone calls, is important to getting the case in the best posture for a successful mediation.

2. Set Goals, Strategies and Expectations. Meet with your client before the mediation to discuss the case in detail and to set goals and strategies for the case and expectations for realistic potential outcomes during the mediation. Set multiple goals for the case, where possible, so that one or more mini-victories may be achieved at mediation and may lay the foundation for further successes down the road. When discussing expectations with your client, also discuss the likely expectations (interests, wants and needs) of the opposing party. Mediations are two-sided and require a mutual understanding of the parties’ issues and interests and the willingness to compromise by all parties to be successful.    

3. Bring the Decision Makers. Whether in person or by Zoom, make certain that key decision makers are participating in the mediation. Many local court rules require that decision makers “be present” during the mediation. This information—who will be attending mediation--should be shared with the mediator and with opposing counsel. Having decision makers present and playing a key role during the mediation shows the other side that that party is there in good faith and is serious about settling the case.  It also puts a face to the name or title and further humanizes the process.

4. Don’t Hide the Ball. Share important facts and information with opposing counsel before the mediation. Whether formal discovery has been undertaken or not, disclose important information about liability, causation and damages prior to the mediation. Nothing sabotages a mediation like information being sprung on a party on the day of the mediation, not giving the party proper time to digest and consider the new information. This surprise can also slow if not completely derail a mediation, when a party believes that secrets are being kept or the other party is just not playing nicely or by the same rules as others. Full disclosure of facts, information, documents and the like by ALL parties best facilitates a common understanding of issues and interests and affords the greatest chance of success at mediation.

5. Success Even Without a Settlement.  Not all cases settle at mediation. But this does not make the mediation a waste of time. Through thoughtful discussions with each other and/or with the mediator, issues can be narrowed or clarified. An agreement on the critical facts or issues preventing settlement is an accomplishment and may lead to further discussions and explorations of settlement. The use of focused or targeted discovery after mediation can save time and money and can be a helpful tool in the parties’ re-evaluation of the case, whether further settlement discussions follow or whether trial is inevitable. A second mediation may be scheduled by the parties following these focused discovery efforts, where the parties can pick up where they left off.  

Mr. Barrett has presided over many mediations in the Middle District of Pennsylvania since the start of the ADR program there in 1994. He has shared that many of the cases mediated through the Middle District’s mediation program settle at mediation—historically, well over 50%. And while the Court does not formally follow-up with counsel or the parties in the event of an “unsuccessful” mediation, Mr. Barrett has learned anecdotally that a good many of those cases do resolve themselves, in one fashion or another, before trial and likely as the result of the good work that was done during the mediation.  

In summary, don’t just “check the box” on the trial certification form that mediation was attempted but failed. As stated above, go into any court-ordered or court-encouraged mediation with the required preparation, planning, mindset, decision makers, and sharing of information and ideas to enable the best chance of success at mediation.

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* A special thanks to Joe Barrett, one of the best mediators that I know and so gracious with sharing his knowledge, time and talents with other ADR professionals!