In February, the Western District of Pennsylvania released an order to update the court’s ADR policy and procedures, specifically regarding the procedure used for bringing sanctions. This month, the court released a second order with a minor amendment to the February updates.
The impetus behind these changes, as reported in a recent article from the Allegheny County Bar Association Lawyers Journal, stems from an increase in attorneys filing motions for sanctions related to ADR. As the Lawyers Journal explains, a significant amount of the sanctions filed alleged that parties attend mediation in bad faith with no intent to settle or lack the authority to reach an agreement. In response to a call from judges and practitioners to modify the court’s policies, the court’s Case Management/ADR Committee asked Magistrate Judge Lisa Pupo Lenihan to lead an ad hoc subcommittee to propose rule changes to deter motions for sanctions. The changes developed by the ad hoc subcommittee were then instituted by Judge Joy Flowers Conti in the February and March orders.
The largest modification to the court’s policies is the addition of a good faith definition and a new process for bringing motions for sanctions. Under the order, the court defines “good faith” as a “duty of the parties to meet and negotiate with a willingness to reach an agreement.” Additionally, the order mandates that any party who is scheduled for a mediation and either (1) does not intend to make a settlement demand or offer or (2) is waiting for the disposition of a certain motion before settlement discussions must now inform the mediator and the other parties of their intent no later than 15 days before the mediation. Originally, the February order gave the parties 10 days to share this intent with the mediator and other parties but the March order modified and extended this deadline to 15 days.
The most notable modification found under the order is an appendix, which outlines the new process for bringing sanctions and makes the process more arduous. Under the appendix, any party filing a motion for sanctions regarding ADR, must first serve the other party their proposed motion for sanctions. Then the parties have 14 days to discuss and try to resolve the issues raised in the motion. If the parties are able to resolve their issues, nothing further is required. However, if the parties are not able to resolve their issues, then the party filing for sanctions must first file a Notice of Intent to file for sanctions and certificate confirming the parties discussed the motion and were unable to resolve the issues raised. The certificate must also identify whether the parties agree or disagree that resolving the motion will implicate confidential information. Once the party’s Notice of Intent is filed, the court will then schedule a conference in an attempt to resolve the issues before the motion for sanctions is filed.
The court’s full policies and procedures, including these recent updates, can be found here.