Frequently Asked Questions
1. What is mediation?
Mediation is a form of Alternative Dispute Resolution (ADR) that is offered by OGC as an alternative to traditional litigation. Mediation is an informal means of resolving a dispute with the active, direct participation of the parties and the assistance of a trained mediator. The mediator has no authority to impose a settlement on the parties.
2. What are the benefits of mediation?
Because the mediator helps the parties come up with their own ideas for resolving their problems, the parties are able to control the outcome of the dispute resolution. The parties can establish better relationships through the improved communication and constructive problem solving that is part of the mediation process. Mediation saves time, money and judicial resources. Because the parties have crafted a solution that is acceptable to them, there is also a higher degree of compliance achieved through mediation.
3. What types of issues are mediated?
Mediation is most appropriate where there are recurring disputes, a need for an ongoing relationship between the disputants, communication breakdowns, workplace disputes, controversies involving government red tape, bankruptcy or potential bankruptcies, industry-wide disputes, Equal Employment Opportunity Commission claims, and those cases where there may be a need for privacy and confidentiality that is not available in a public forum. If you have a question about whether a matter is appropriate for mediation, contact your agency Office of Chief Counsel.
4. Who are the mediators?
The mediators are OGC attorneys who have received mediation training from the Dickinson Center for Dispute Resolution or through an equivalent mediation training.
5. Is a mediation agreement binding?
The parties can create a signed mediation settlement agreement as a contract that is intended to be legally binding.
6. Is the mediation process confidential?
All parties will be asked to sign an Agreement to Mediate (See Tab F) prior to initiating a mediation session. The agreement states that the participants and the mediator agree to keep the session confidential, and that the participants agree not to compel the mediators disclosure of mediation communications or documents. In addition, under state law,
42 Pa.C.S . 5949, all mediation documents and communications are privileged (except for narrow exceptions). Confidentiality extends to all communications during the mediation process, unless otherwise provided for by law.
7. Can I mediate a case if there is a violation of state or federal law?
A violation of law may be resolved through mediation. An attorney should weigh the pluses and minuses of the alternatives mediation, complaint, hearing and decide which is the best option.
8. Who can request mediation?
Mediation is available at the request of any Commonwealth agency under the Governors jurisdiction, any OGC attorney, any Commonwealth employee, or any party engaged in a dispute with a Commonwealth agency.
9. How much does mediation cost?
There is no cost for the mediation, unless the mediator is required to undergo significant travel expenses. Each party, of course, pays for the partys own counsel and other costs.
10. Who will provide and pay for meeting facilities?
It is anticipated that Commonwealth facilities will be utilized for mediations. If the parties mutually wish to incur the cost of another meeting facility, it will be up to the parties (with the assistance, if necessary, of the mediator) to determine how the costs will be shared.
11. Who will provide and pay for amenities (for example, refreshments) at prolonged mediations?
The parties will provide for their own amenities at mediations.
12. How does a party begin the mediation process?
Once both parties agree to mediation, the agencys Office of Chief Counsel will complete a Request for Mediation form (See Tab C) and submit it to OGC. All requests for mediation must come through OGC. OGC will then provide the parties with a list of trained mediators from which they can make their selection.
13. How will mediators be selected for particular mediations?
OGC will provide the parties with a list of potential mediators. It will be up to the parties to agree on a mediator to handle their case. It is anticipated that this selection will be based on the nature of the dispute and the mediators experience and expertise.
14. What happens after the mediator has been selected?
The mediator will receive an Appointment Letter (See Tab D) from OGC.
The mediator will then be in contact with the parties to schedule the mediation.
The mediator will also schedule a meeting room for the mediation session in a Commonwealth meeting facility.
Prior to the mediation, the mediator will send a letter to the parties, which includes Good Faith Ground Rules to guide their conduct during the mediation session (See Tab E). The parties will also be given an Agreement to Mediate (See Tab F) and will be asked to complete a Mediation Statement in which they provide a confidential description of the dispute (See Tab E).
15. What will happen during a mediation?
The mediator will contact the parties, or counsel if counsel for the parties have initiated the request for mediation, and explain the process and answer any questions. Counsel will be asked to explain the situation and identify all participants. Participants may also be contacted by the mediator. If everyone agrees to participate in mediation, a time and place will be set. During the mediation, the mediator will ask questions to clarify each participants needs and issues. Each issue will be separately addressed for possible solutions. If everyone is satisfied with the proposed resolution, it will be incorporated into a written agreement that the parties will prepare for all to sign.
Separate caucus rooms will be available at all times during the mediation for private, confidential meetings and discussions with the mediator. The mediator or either party may ask for time to caucus privately during the mediation session.
16. What is counsels role during the mediation?
The role of counsel shifts from that of an adversarial representative to that of a consultant, advisor, or coach. Counsel may need to advise the parties as to whether the alternative resolution being explored by the parties is legally acceptable, or help the parties to frame alternative resolutions in ways that are legally appropriate.
17. What is an effective pre-mediation strategy for counsel?
Counsel should look at the dispute from the other partys point of view. This will help counsel to determine if there are factors driving the other partys position that might be capable of resolution in a different way. Counsel should focus on how the opponent views the case and the assumptions, evidence and legal analysis that support that view. Counsel should also consider the motivation of the opponents decision maker and the factors that are likely to change or influence that view. Counsel should consider what will happen if settlement is not reached. If there are benefits to settlement, counsel should encourage the parties to be open-minded and to explore solutions that might alleviate the other partys concerns.
18. What is a mediators role in mediation?
A mediators role is to facilitate communication and restate issues and needs in a clear and non-confrontational manner. The mediator may meet with the parties privately to discuss information the party does not wish to share with the other side. If necessary, the mediator can help to provide a reality check regarding unrealistic expectations of a participant, in a private setting. A mediator has a duty of impartiality. Mediators do not judge evidence or decide a case. Mediators do not decide the terms of any resulting agreement, but may assist the parties in drafting issues.
19. What information about the mediation will be collected by OGC?
The mediator will be required to provide OGC with a Mediation Summary form
(See Tab G) that will document only the parties involved in the mediation; their attorneys, if any; the mediator; the date, time and place of mediation; the hours involved in the mediation sessions; and whether the mediation resulted in a settlement. The Mediation Survey Form, completed by agency counsel attending mediation will be maintained by OGC for statistical purposes (See Tab H).
20. What documents, including the mediators notes, should the mediators retain?
Mediators should not retain their notes or any documents provided by the parties. At the conclusion of the mediation all documents related to the mediation should be promptly destroyed except the Mediation Summary form, which must be submitted to OGC.
21. To what degree should mediators restrict their involvement in authoring settlement agreements?
The parties, not the mediator, should author settlement agreements. The mediator may assist in resolving drafting issues.
22. What is expected of the parties at a mediation?
The parties are expected to come to the mediation with an open mind and willingness to listen to the other party. The parties should be respectful of one another and of the mediator and should think creatively about possible solutions to their dispute. The parties should act in good faith at all times.
23. What if one party decides the mediation process is not working and wants to terminate the process?
At any time during the mediation either party has the option to terminate the mediation and pursue a resolution in another forum such as an administrative tribunal or in the courts.
24. What if the mediation fails to result in a mutually satisfactory agreement?
Nothing is lost if mediation does not resolve the dispute. Issues may have narrowed between the parties. Lines of communication may have opened. Parties may have had the opportunity to see the dispute from the other sides perspective. Both parties still have at their disposal access to more traditional means of dispute resolution, including administrative tribunals and the courts. Many times settlement occurs after the mediation sessions end as a result of the efforts expended in the mediation process.