Mediation is a flexible program designed to informally help parties resolve disputes. Parties agree to work together toward a final resolution, considering how any solution must address the interests of all parties. The mediator is a neutral person who does not represent the parties, advise them, evaluate the case, or make a decision. Instead, the mediator assists the parties in reaching their own mutually acceptable agreement. This means that the parties themselves control the outcome, as opposed to having the outcome determined by an adjudicator, such as an Administrative Law Judge (ALJ) or the Commission. Mediation is voluntary and parties must consent to mediation. The Office of Administrative Law Judge (OALJ) manages the mediation program.
A party is not required to have an attorney present for mediation.
There is no public record of a mediation session (no court reporter is present) and discussions are confidential, unless otherwise provided for by law, regulation or rule. Mediation is not binding (except for any agreement reached by the parties) and a party may withdraw from mediation at any time. Mediation is ordinarily an efficient and economical procedure compared to a hearing which is often expensive and time-consuming.
The Commission encourages negotiation to settle proceedings and encourages mediation where the parties themselves are unable to resolve a dispute.
Goals of Mediation
The focus of mediation is not to determine fault, assign blame, deal with past issues, or determine who is right. Rather, the focus is on having the parties serve as joint problem solvers in an attempt to reach a consensual resolution that all participants can live with in the future. This differs from a settlement conference which is based on competitive negotiations.
The goals of mediation are to:
- Facilitate the early resolution of disputes.
- Decrease the cost to parties in resolving disputes.
- Save the parties time by not having to prepare for, and participate in, a formal hearing.
- Avoid anxiety and uncertainty associated with the formal hearing process.
- Allow the parties to be the decision makers by arriving at their own settlement agreement as opposed to having the decision imposed upon them by a judge.
- Allow the parties to preserve good relationships.
How a Case Comes to Mediation
In general, the Office of Administrative Law Judge screens formal applications, complaints and petitions assigned to it to determine whether a case might be appropriate for mediation. If a case is appropriate, the Chief ALJ will issue an Interim Order requiring a dispute resolution conference between the parties. This conference may result in a resolution. If not, the parties may request the intervention of a mediator, or ask that the case be scheduled for hearing. If more than two parties are involved, a notice might be sent to the parties asking them whether they consent to use the mediation process. Also, a party may request mediation at any time.
Mediation is generally not appropriate where:
- The result requires a determination of an issue at law.
- A party wants a determination of who is right.
- A party or the parties would like the result of a proceeding to serve as precedent.
- The result of a proceeding would establish a policy (unless all of the stakeholders collaborate for the purpose of setting a policy).
Small Business Mediation Program
The Small Business Mediation Program is administered by the Pennsylvania Public Utility Commission (PUC) for businesses with fewer than 250 employees. When contacted by a small business customer filing an informal complaint, the PUC advises the customer of the availability of the mediation process as an alternative to litigation. For more information on the program, view the Small Business Mediation brochure.
In mediation, all parties are asked to agree to "Good Faith" and "Professionalism" guidelines. If a party does not agree to comply with these guidelines, it may be that the case is not suitable for mediation.
Good Faith Factors for Mediation Sessions
In the mediation process, the parties must act in good faith. Good faith includes, among other things:
- Giving the participants, prior to the first session, all the information they need to know in order to resolve the case. (The Commission believes "that formal discovery procedures are not appropriate in the informal process." Pa. Bul., Vol. 25, No. 20, May 20, 1995, p. 1996. Therefore, discoverable information should be discovered informally.)
- Being fully prepared with full knowledge of the case and with possible solutions for resolving the case.
- Being willing to create options to resolve a matter, considering how the solution must address the interests of all the parties, as opposed to taking an unyielding position.
- Having the person with the authority to approve the terms for resolution attend the mediation session, or, at least, be available to confer with the party's representative during the mediation regarding approval of terms.
- Demonstrating a willingness to listen and to understand the perspectives of the other parties.
- Being willing to spend the entire day, if necessary, at the session.
Working Rules for Professionalism
Provided by the Pennsylvania Bar Association:
The practice of law is a profession,a genuine calling inspirited with service to the system of justice, not a common business enterprise.
The quality of the profession is only as worthy as the character of the people who practice it.
Self-esteem, shared respect for each other, the clients we serve, the judges and the officers with whom we work, are essential to it.
Civility is a virtue, not a shortcoming. Willingness to temper zeal with respect for society's interest in preserving responsible judicial process with help to preserve it.
Unwritten rules of professional courtesy have long sustained us. Since they are sometimes forgotten, or sometimes ignored, we should set them down again and conscientiously observe them.
- Treat with civility the lawyers, clients, opposing parties, the Court, and all the officials with whom we work. Professional courtesy is compatible with vigorous advocacy and zealous representation.
- Communications are lifelines. Keep the lines open. Telephone calls and correspondence are a two-way channel: respond to them promptly.
- Respect other lawyers' schedules as your own. Seek agreement on meetings, depositions, hearings and trial dates. A reasonable request for a scheduling accommodation should never be unreasonably refused.
- Be punctual in appointments, communications and in honoring scheduled appearances. Neglect and tardiness are demeaning to others and to the judicial system.
- Procedural rules are necessary to judicial order and decorum. Be mindful that pleadings, discovery processes and motions cost time and money. They should not be heedlessly used. If an adversary is entitled to something, provide it without unnecessary formalities.
- Grant extensions of time when they are reasonable and when they will not have a material, adverse effect on your client's interest.
- Resolve differences through negotiation, expeditiously and without needless expense.
- Enjoy what you are doing and the company you keep. You and the world will be better for it.
Beyond all this, the respect of our peers and the society which we serve is the ultimate measure of responsible professional conduct.
PA Code on Mediation
The Pennsylvania Code covers mediation in several sections. The Pennsylvania Code is the Commonwealth's official publication of rules, regulations, and guidelines.
- General (52 Pa. Code Sec. 69.391)
- Availability of Mediation (52 Pa. Code Sec. 69.392)
- Role of Mediator (52 Pa. Code Sec. 69.393)
- Mediation Notice (52 Pa. Code Sec. 69.394)
- Mediation Rules (52 Pa. Code Sec. 69.395)
- Conclusion of Mediation (52 Pa. Code Sec. 69.396)
- Flexibility (52 Pa. Code Sec. 69.397)
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