The Challenge for Mediation in Pennsylvania

Revised July 26th, 2021

Mediation in the context of litigated cases has been around for over 40 years. In Pennsylvania it does not yet enjoy the support of state wide adoption through statute or court Rule as it does in other jurisdictions. However, specific aspects of Mediation, and ADR in general are indeed supported by statute, court Rule and rulings, and indeed in the community at large to varying degree.

Some basic principles essential to the development and success of mediation risk being overlooked if the ADR community does not remind participants and our audience of its values. The loudest voices historically critical of the values of the process are often those who see themselves as having the most to lose to an “alternative” model.

Of late, they and their clients are recognizing they stand to gain the most if we can demonstrate how embracing the fundamentals of effective process can lead to successful outcomes.

1. Party Self-Determination. The mediation belongs to the parties, but party self-determination should not equal self destruction.
2. Flexibility is Vital. No two mediations are the same, so why do some mediators do the exact same thing every time?(Is it because the mediation is theirs not the parties?)
3. Mediation is start to finish Open-Ended. If no two mediations are alike, how do you know going in what to do and how can you get it done in a couple of hours?
   • If you have two hours scheduled for a mediation, you and the mediator should plan to make the most valuable use of that limited time.
   • If the mediator and/or the parties cannot commit to a thorough pre-mediation process you might be guilty of not giving the process a real chance.
   • Without exception, taking time with your neutral to pre-mediation plan the process to the extent feasible, is never a waste of time.
4. Matching your Mediator is Key. In your first discussion with the potential mediator, ask the mediator how the pre-mediation process is handled. While indeed there are instances where the neutral and the parties gather sight unseen for the session without any meaningful exchange of information other than perhaps a set of pleadings, now decades of practice and study encourage a strategic application of engagement prior to the actual mediation.
5. What is the pre-mediation process? At ADRFitz a basic checklist or outline is used, which is often expanded to address necessary details unique to the parties, their counsel, and the dispute at hand. [Link] This process centered practice has provided many opportunities for reflection and engagement leading to mutually advantageous engagement at mediation.