Mediation in Pennsylvania

Orientation first, mediation only with consent

Pa.R.C.P. 1940.3(a) lets a court order parties to attend an orientation session at any time. This can happen on a party's motion, by the parties' stipulation, or on the court's own initiative. Rule 1940.3(c) explains what happens next. After orientation, and only with the parties' consent, the court may refer them to mediation. Mediation can then cover whatever issues the parties agree to, unless a court order limits its scope.

When Pennsylvania courts cannot order orientation

Rule 1940.3(b) draws a bright line. A court may not order an orientation if a party or a child of either party is or has been the subject of domestic violence or child abuse. This covers abuse during the case or within the 24 months before it was filed. Even in cases that do go forward, the mediator has a continuing duty to screen for abuse, under Rule 1940.4(b)'s ethical standards. The mediator must terminate mediation under Rule 1940.6(a)(4) if the case turns out not to be suitable for mediation.

Mediator qualifications

Rule 1940.4(a) sets a detailed minimum standard for Pennsylvania custody mediators. A mediator needs a bachelor's degree and practical experience in law, psychiatry, psychology, counseling, family therapy, or a comparable behavioral or social science field. A mediator also needs basic training in domestic and family violence or child abuse. The mediator must complete a divorce and custody mediation program approved by a recognized body, like the Association for Conflict Resolution or the Administrative Office of Pennsylvania Courts. A mediator needs mediation professional liability insurance and supervised experience: at least 4 mediated cases totaling 10 hours under an approved supervising mediator.

Once qualified, a mediator must follow ethical standards from both the mediation profession and their primary profession. A mediator must also complete at least 20 hours of continuing education every two years on family mediation topics. A post-graduate student in a qualifying field can mediate under direct, actual supervision.

What the mediator has to tell the parties

Under Rule 1940.5(a), the mediator must inform the parties in writing as part of orientation. This must cover the cost of mediation and how the process works. It must state that the mediator does not represent either party. It must disclose relationships or interests that could create bias or a conflict of interest. It must also state that mediation is not a substitute for independent legal advice, and that the parties should get legal help to draft or review any agreement.

When mediating a custody dispute, Rule 1940.5(b) requires the mediator to make sure the parties fully consider the child's best interests. With the parties' consent, the mediator can meet with the children, or invite other people into the process, under Rule 1940.5(c). Parties who cannot afford mediation costs can apply for a fee waiver or reduction under Pa.R.J.A. 1990. This is the same rule that applies to litigation costs generally.

How mediation ends and what happens with an agreement

Rule 1940.6(a) lists four ways mediation ends. The mediator may decide the parties cannot resolve all the issues, or that they resolved everything. The mediator may decide they reached a partial resolution that more sessions will not help, or decide the case is not appropriate for mediation. If the parties reach a full or partial resolution, the mediator has 14 days to prepare and send them a Memorandum of Understanding. The mediator must also send a copy to a party's attorney on request, under Rule 1940.6(b). If no resolution is reached, the mediator simply reports that fact in writing to the court within 14 days, without further explanation, under Rule 1940.6(c).