By Order dated February 16, 2018, supplemented by Order dated March 14, 2018, Chief Judge Joy Flowers Conti of the United States District Court for the Western District of Pennsylvania approved revisions to the Court’s ADR Policies and Procedures, effective immediately. The significant substantive changes are:
- Good Faith Participation. New Section 2.8 of the ADR Policies and Procedures sets forth the Court’s expectation that parties ordered to mediation “shall attend with full and complete settlement authority and shall participate in good faith.” The new section defines the duty of “good faith” as the duty of the parties to meet and negotiate with a willingness to reach agreement, full or partial, on matters in dispute.” In addition: “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.”
- ADR-Related Motions for Sanctions. New Section 2.9 of the ADR Policies and Procedures provides that any ADR-related motions for sanctions must comply with the process outlined in new Appendix A to the Policies and Procedures. Appendix A sets forth very detailed procedures governing such motions. The more noteworthy requirements include: (i) prior to filing a sanctions motion, the moving party must serve the motion on the opposing party and within fourteen days thereafter the parties or their counsel must engage in discussions in an attempt to resolve the issues raised in the motion; (ii) if the issues are not resolved and the moving party intends to proceed with the filing of the motion, it must first file a “Notice of Intent to File Motion for Sanctions” in the form prescribed by the Appendix and that maintains the confidentiality of the ADR process; (iii) upon the filing of such a Notice, the assigned judge will decide whether to handle the motion or to refer it to the ADR Judge or a designee; (iv) the judge handling the motion will conduct a conference in an attempt to resolve the issues and the motion may not be filed until the judge grants leave to do so; (v) if leave is granted for the moving party to proceed with the motion, all filings related to the will be filed under seal.
- Procedures at Early Neutral Evaluations. Section 4.9 of the ADR Policies and Procedures governs the procedures used at early neutral evaluations (ENEs). Section 4.9 is largely unchanged, but has been revised with respect to the manner in which the neutral presents his or her evaluation. Under new Section 4.9C, the evaluation is to be presented to the parties and their representatives (and insurers, if applicable) orally, but the revised procedures allow the parties to elect whether to have the presentation delivered in a joint session or in separate sessions. New Section 4.9C also provides that the evaluation may be provided to any party in writing upon the party’s request.
A red-lined version of the revised ADR Policies and Procedures can be found here.
The updated ADR Policies and Procedures, effective April 23, 2018, can be found here.