1399 Medical Professional Liability Catastrophe Loss Fund and mediation

MEDICAL PROFESSIONAL LIABILITY CATASTROPHE LOSS FUND

[31 PA. CODE CHS. 242 AND 246]

Medical Professional Liability Catastrophe Loss Fund and Mediation

[27 Pa.B. 4460]

   The Medical Professional Liability Catastrophe Loss Fund (Fund), under the authority of the Health Care Services Malpractice Act (act) (40 P. S. §§ 1301.101--1301.1006) proposes to adopt amendments to read as set forth in Annex A.

Background:

   On November 26, 1996, Governor Tom Ridge signed into law the act of November 26, 1996 (P. L. 776, No. 135) (Act 135). This legislation amends the act and constitutes the first substantive changes to the act in over 14 years. The Fund was first established under the act, and its purpose is to provide professional liability insurance to Pennsylvania's health care providers, as defined in the act, at a reasonable cost and ensure just compensation to the victims of alleged professional negligence. See section 103 of the act (40 P. S. § 1301.103). The recent amendments to the act alter the professional liability insurance marketplace, the Fund's role in the marketplace and certain of the procedures and processes governing professional liability malpractice litigation in this Commonwealth.

   The purpose of these proposed amendments is to provide uniform procedures and forms to enable insurance companies and self-insurers to comply with the liability insurance provisions of the act, to promulgate guidelines and requirements governing the purchase of insurance by health care providers as mandated by the act and to issue regulations necessary to properly effectuate the administrative and financial operations of the Fund. In addition, the proposed rulemaking embodied in Chapter 246 (relating to medication) implements section 702(i) of the act (40 P. S. § 1301.702(i)) by providing uniform procedures to be used in conducting mediation where primary medical malpractice insurance carriers and self-insureds disagree in a case involving the Fund. The mediation provisions create a system whereby mediation can be used to resolve differences, rather than litigation.

Summary:

General Amended Provisions

Chapter 242

   Definitions (§ 242.2)  This section deletes definitions that refer to the prior method of calculating the Fund surcharge. Added to this section are definitions of the ''prevailing primary premium,'' which is now the basis upon which the Fund surcharge is calculated, under the act and the definition of the term ''interest.''

   Notice and amount of surcharge (§ 242.3)  The proposed amendments to this section clarify the notice requirements regarding any change in the amount of surcharge and the applicability of the change.

   Computation of surcharge (§ 242.4)  The proposed amendment to this section mandates that basic insurance carriers shall obtain statements from health care providers as to their addresses and specialties, and that the primary insurer must accurately compute the insurance premium and Fund surcharge. The amendments to this section are necessitated by the General Assembly's adoption of the prevailing primary premium to calculate Fund surcharge.

   Adjustment of surcharge (§ 242.5)  The proposed amendment to this section provides that primary insurers must submit the Fund surcharge within 20 days after the date on which the policy is written or renewed, or the effective date of the policy. Late remittance by the insurer or self-insurance plan shall result in the payment of interest by the party. Also, a refund check will not be issued to a carrier or health care provider unless unusual circumstances arise which indicate that a refund shall be made.

   Reporting forms and procedures (§ 242.6)  The proposed amendment to this section attempts to clarify the procedures and forms used by insurers and self-insured plans when reporting to the Fund. Specifically, the original Form 5116 or Declarations Page is to be mailed to the health care provider within 20 days of the effective date of the policy or self-insurance. A Declarations Page, indicating acknowledgment of insurance and surcharge paid shall be submitted to the Fund at its Harrisburg, office, and shall contain all of the information requested on Form 5116. The Form 2116 Remittance Advice, summarizing all surcharges collected, payable and refundable, accompanied by a check, shall be received in the Director's Office within 20 days from the effective date of the policy. In amended subsection (a)(3), there are additional requirements regarding information that must be contained on the Form 2116 in order to assist the Fund in verifying coverage.

   Discontinuation of basic coverage insurance and notices of noncompliance (§ 242.7)  The proposed amendments to this section contain requirements applicable in the event the health care provider changes the term of professional liability coverage. In the circumstances, the surcharge shall be calculated on an annual basis and shall reflect the surcharge percentages in effect for all calendar years over which the policy is in effect. Additional payments necessitated by the change shall be remitted within 20 days of the effective date of the annual surcharge. Cancellations are to be reported on Form 2116 by indicating the unused portion of the policy. These dates, the return premium and the return surcharge shall be recorded in parenthesis.

   Overpayments, credits and duplicate payments (§ 242.9)  The proposed amendment to this section states that in the event of overpayments made by insureds, agents or insurers, the overpayments shall be recovered by offsets against amounts due from companies to the Fund. Also, the amendment mandates that refunds shall be paid directly to the health care provider by the agent or insurer, and upon showing of proof of payment, the Fund will then issue the appropriate credit to the agent or insurer.

   Self-insurers (§ 242.10)  The proposed amendment to this section makes clear that this chapter applies to approved and accepted self-insurance plans and self-insurers, and that they shall pay the surcharge to the Fund, accompanied by reporting forms required under § 242.6, within 20 days of the effective date of the self-insurance plan and on an annual basis thereafter within 20 days of the inception of the annual self-insurance.

   Compliance (§ 242.17)  The proposed amendment to this section provides that the health care provider who fails to pay the surcharge or emergency surcharge within the prescribed time limits shall be responsible for the payment of interest, and will not be covered by the Fund in the event of loss for the period of time in which any delinquencies exist. Also, late remittances by insurance carriers of surcharges collected from health care providers and late remittance of surcharges due from self-insurance providers shall include interest.

   Effective date (§ 242.18)  The proposed amendment to this section makes clear that the effective date of Chapter 242 as well as the commencement date for using the prescribed forms is November 26, 1996.

   Corrections (§ 242.21)  This new section provides that any corrections to previously submitted Form 216 shall be clearly marked ''Correction.'' Any Correction Form 216 shall be separate from other reporting forms and shall identify the original Form 216 being corrected, and shall contain only the health care providers erroneously submitted. The insurer or the self-insurer shall respond with a Correction Form 216 within 20 days after being notified of an erroneous submission.

Chapter 246.  Mediation

   Purpose (§ 246.1)  This section identifies the purpose of Chapter 246 pertaining to mediation of disputes between insurers, self-insurers or the Fund in medical malpractice actions.

   Definitions (§ 246.2)  This proposed section defines terms used in Chapter 246 of the regulations.

   Agreement of parties (§ 246.3)  This proposed section provides that when multiple insurers or the Fund, or both, disagree on a case, the Fund may provide for a mediator upon the request of any party, as defined in § 246.2. Whenever any of the parties agree to mediation, chapter 246 applies.

   Administration and delegation of duties (§ 246.4)  This proposed section provides that upon the request of a party to a case within Fund coverage limits, the Fund may provide for a mediator. Special mediation sessions may be held to determine each defendant's proportionate share of liability. Selected mediators shall immediately disclose any circumstances creating a presumption of bias or interest in the outcome of the proceedings, or any circumstances that may prevent prompt meeting with the parties. If a party thereafter objects to a mediator on the basis of identifiable bias, interest or unavailability, a new mediator will be selected who is agreeable to all participants.

   Binding mediation (§ 246.5)  This proposed section provides that if all parties agree to binding mediation, all parties shall be bound by the conclusions of the mediator. If parties cannot agree to binding mediation, they should utilize the assistance of an impartial mediator in a good faith attempt to work toward a mutually satisfactory solution.

   Date, time and location of the mediation proceedings (§ 246.6)  This proposed section provides that a mediator will immediately work with the parties to establish a date and time of the mediation session and that notice of a mediation session must be provided to all parties at least 3 working days in advance of the session. At the discretion of the mediator, he may meet with or request information from one or more parties.

   Mediation session (§ 246.7)  This proposed section states that the manner in which mediation sessions shall be conducted must expeditiously permit full production of all relevant information, including written materials and a description of the testimony of each witness, if necessary. Materials or information for complex cases, as designated by the Fund, may be requested by the mediator in advance of a mediation session. Documents provided to the mediator shall also be provided to every other party to the mediation. Mediators will conduct orderly settlement negotiations at mediation sessions, considering the facts, issues and arguments of the parties, and parties will be represented by persons with authority to resolve or settle, or both, disputes.

   Mediation by document submission (§ 246.8)  This proposed section permits parties to agree that a dispute will be decided on the basis of document submission, and specifies the procedures to be followed in the circumstances.

   Conclusions of the mediator (§ 246.9)  The mediator shall issue and distribute his decision no later than 2 business days from the date of closing of the final mediation session or complete submission of documents. The decision shall specify the remedy, if any, shall be in writing and signed by the mediator, and there will be no formal opinion unless all parties agree.

   Expenses (§ 246.10)  This proposed section provides that witness expenses shall be paid by the party producing the witness and that all of their expenses of the mediation, and including mediator expenses and the expenses of any witness and the cost of any proof produced at the direct request of the mediator, shall be borne equally by all parties, unless they agree otherwise.

   Confidentiality (§ 246.11)  This proposed section makes clear that statements made and items of proof admitted at mediation sessions are inadmissible in any litigation or arbitration, to the extent allowed by law. Also, this section provides that the parties agree not to subpoena or otherwise require the mediator to testify or produce records, notes or work product in any future proceedings. In addition, no record will be made of the mediation sessions. The conclusion of the mediator in binding mediation shall have the force and effect of a settlement.

Effective Date

   The effective date of Chapter 246 is proposed to be November 26, 1996.

Affected Organizations and Individuals

   These proposed amendments will have a positive effect on all basic coverage insurers, self-insurers, plaintiffs and all defendants in medical malpractice litigation involving the Fund in that the proposed amendments will provide clarification of uniform procedures and forms to enable insurance companies and self-insurers to comply with the liability insurance provisions of the act. The proposed amendments will properly effectuate the administrative and financial operations of the Fund and provisions will be in place to provide uniform procedures to be used in conducting mediation when there is disagreement on a case involving the Fund.

Accomplishments/Benefits

   The proposed amendments in Chapter 242 and the proposed regulations in Chapter 246 will ensure dissemination of proper administrative procedures and requirements and a means by which disagreements on medical malpractice litigation involving the Fund can be resolved without resort to costly litigation.

Fiscal Impact

Public Sector

   With respect to Chapter 242, the proposed amendments require more timely remittance of Fund surcharges by insurers, and also provide for payment of interest to the Fund on overdue amounts. Chapter 246 will provide fiscal benefit to the Commonwealth in that mediation provides a means by which to avoid costly litigation.

Private Sector

   There will be no added cost to basic coverage insurers, self-insurers, plaintiffs and defendants in medical malpractice litigation involving the Fund. In addition, there will be no cost to the general public.

Paperwork Requirements

   The proposed amendments in Chapter 242 provide for no additional paperwork requirements, other than minor changes in the collection and reporting of certain relevant data and its inclusion on already existing forms that are submitted to the Fund.

Effective Date

   The proposed amendments will become effective retroactively to November 26, 1996, after they are published in the Pennsylvania Bulletin in final form.

Sunset Date

   There is no sunset date for these proposed amendments.

Public Hearing

   There are currently no plans to hold public hearings.

Public Comment

   Interested persons are invited to submit suggestions or objections regarding the proposed amendments to Arthur F. McNulty, Chief Counsel, Pennsylvania Medical Professional Liability Catastrophe Loss Fund, 10th Floor, Suite 1000, 30 North Third Street, P. O. Box 12030, Harrisburg, PA 17108, [phone], within 30 days of the date of publication of this proposed rulemaking in the Pennsylvania Bulletin. Comments received within 30-calendar days will be reviewed and considered in the preparation of the final-form regulations. Comments received after the 30-day comment period will be considered for subsequent revisions of these proposed amendments.

Regulatory Review

   Under section 5(a) of the Regulatory Review Act, (71 P. S. § 745.5(a)), the Board submitted a copy of these proposed amendments to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Committee on Health and Welfare and the Senate Committee on Public Health and Welfare. In addition to submitting the proposed amendments, the Board has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the agency in compliance with Executive Order 1996-1. A copy of this material is available to the public upon request.

   If IRRC has objections to any portion of the proposed amendments, it will notify the Board within 10 days of the close of the Committees' comment period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the amendments, by the Board, the General Assembly and the Governor of objections raised.

JOHN H. REED,   
Director

   Fiscal Note:  20-1. No fiscal impact; (8) recommends adoption.

Annex A

TITLE 31.  INSURANCE

PART IX.  MEDICAL CATASTROPHE LOSS FUND

CHAPTER 242.  MEDICAL PROFESSIONAL LIABILITY CATASTROPHE LOSS FUND

§ 242.2.  Definitions.

   The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

*      *      *      *      *

   [Cost to each health provider--The gross premium, including experience and schedule rating for basic coverage professional liability insurance.]

*      *      *      *      *

   [Gross premium--The entire premium charged the insured, including, but not limited to, binder charges and policy fees, as is generated to secure an occurrence-based policy. In the case of a claims made policy, the gross premium shall be computed as the sum of all the premiums charged for the claims made policy including the reporting endorsement (that is, tail coverage) or prior acts coverage or its substantial equivalent. Payment of the surcharge shall be made at the time that the respective premium is collected subject to the limitation of § 242.6(a)(3) (relating to reporting forms and procedures).]

*      *      *      *      *

   Interest--The rate prescribed in section 506 of The Fiscal Code (72 P. S. § 506).

   Prevailing primary premium--The schedule of rates approved by the Insurance Commissioner and in use by the Joint Underwriting Association as of January 1, 1996.

§ 242.3.  Notice of and amount of surcharge.

   (a)  The Director, with the prior approval of the Insurance Commissioner, will publish, prior to December 1, in the Pennsylvania Bulletin, notice of [a] any change in the amount of surcharge applicable to health care providers and collectible during the following calendar year.

   (b)  The effective date of [a] any change in the amount of surcharge shall be January 1 and shall be applicable to all policies of basic coverage insurance or plans of self-insurance [having new or renewal dates occurring on or after January 1].

§ 242.4.  Computation of surcharge [when professional liability insurance premium part of a composite rate].

   (a)  The basic insurance carrier shall obtain from the health care provider a statement as to the addresses and specialty of the health care provider, and shall provide a copy of the statement to the Fund in line with the reporting requirements in this chapter.

   [(a) Where] (b) When the professional liability insurance premium of an insured is included in a composite rate or with other insurance coverage, it shall be the responsibility of the insurer to accurately compute the portion attributable to the professional liability insurance [, in order to properly determine the surcharge].

   [(b)] (c)  ***

§ 242.5.  Adjustment of surcharge.

   (a)  Calculation of the surcharge shall be made based on the first policy written or renewed after January 1 of the calendar year. The surcharge amount shall be submitted to the Fund within [60] 20 days of the effective date required by § 242.6 (relating to reporting forms and procedures). [A] Any subsequent adjustment to the premium for the basic insurance coverage shall be reported to the Fund by the basic insurance carrier and the surcharge shall be adjusted accordingly.

   (b)  In the event of an increase or decrease in the surcharge owed to the [fund] Fund, the carrier shall submit proper evidence of the modification of the premium for the basic insurance coverage policy and shall indicate on the Form 216 a credit or debit to be applied to the account of the carrier. A refund check may not be issued to a carrier or health care provider unless unusual circumstances arise which indicate that such a refund [may] shall be made.

   (c)  Late remittance by the insurer or a self- insurance plan shall result in the payment of interest by the insurer or self-insurance plan, and interest shall be computed under section 806 of The Fiscal Code (72 P. S. § 806).

§ 242.6.  Reporting forms and procedures.

   (a)  The following forms have been promulgated or approved for use under this chapter:

   (1)  Form 5116--Acknowledgment of Insurance and Surcharge Paid. This form is intended as the acknowledgment from approved self-insured health care providers that they are self-insured in compliance with the act and have paid the Fund surcharge. Basic coverage insurance carriers may also use this form in lieu of the Declarations Page to acknowledge that the health care provider has purchased basic coverage professional liability insurance and paid the Fund surcharge, if prior approval for its continued use has been obtained from the Fund's legal counsel in accordance with paragraph (2)(iii).

   (i)  The original of the form or the Declarations Page--whichever is applicable--is to be mailed to the health care provider [; and a copy is to be submitted to the Fund, accompanied by the surcharge payment and Form 216,] within [60] 20 days of the effective date of the policy or self-insurance period.

   (ii)  Licensed physicians and podiatrists covered under policies issued to hospitals, nursing homes and primary health centers shall also be provided with a complete acknowledgment form. [Individual copies of the form or the Declarations Page--whichever is applicable--accompanied by the surcharge payments for each of these health care providers and Form 216 are to be submitted to the Fund attached to the acknowledgment form applicable to the hospital, nursing home or primary health center.]

   (2)  Declarations Page--Acknowledgment of Insurance and Surcharge Paid. A copy of this form, which forms a part of the medical malpractice policy issued by a commercial carrier, shall be submitted to the Fund in lieu of and in the same manner as Form 5116 as explained in paragraph (1).

   (i)  The Declarations Page shall display [all of] the following:

   (A)  [Information] All information requested on the Form 5116, explained in paragraph (1).

*      *      *      *      *

   (iii)  The Declarations Page shall be submitted to the legal counsel of the Director for approval prior to use. After July 1, 1980, no form will be accepted from a commercial carrier unless circumstances preclude the use of the Declarations Page, and prior approval for the continued use of the Form 5116 has been obtained from the legal counsel of the Director. Requests for approval shall be submitted to: Legal Counsel; [Post Office] P. O. Box 12030; [221 North Second Street] 30 North Third Street; Harrisburg, Pennsylvania 17108.

   (3)  Form 216--Remittance Advice. This form is to be used by basic professional liability insurance carriers and approved self-insurers for summarizing surcharges collected, payable and refundable. The form, accompanied by a check, [should] shall be received in the Director's Office within [60] 20 days from the effective date of the policy. On installment policies, the surcharge applicable to the full annual policy period shall be collected and remitted to the Director at the inception of the policy. This form shall be dated and include the underwriting insurance company's or self-insurer's name, the name of an authorized contact person, and telephone number of authorized contact person, as a heading. This form shall also include the most current Pennsylvania license number, the name and address of health care provider, coverage dates, policy type (if claims made, retroactive date shall be provided), policy number, specialty code, geographic territory, basic coverage limits, gross premium, surcharge and slot positions when applicable and other information as may be required by the Director.

*      *      *      *      *

§ 242.7.  Discontinuation of basic coverage insurance and notices of noncompliance.

*      *      *      *      *

   (g)  When a health care provider changes the term of his professional liability coverage, the surcharge shall be calculated on an annual base and shall reflect the surcharge percentages in effect for all the calendar years over which the policy is in effect. An additional payment necessitated by this subsection shall be remitted within 20 days of the effective date of the annual surcharge.

   (h)  Cancellations shall be reported on Form 216 by indicating the unused portion of the policy. These dates, the return premium and the return surcharge shall be recorded in parentheses.

§ 242.9.  Overpayments, credits[,] and duplicate payments.

   (a)  When overpayments are made by insureds, agents or insurers, they [may] shall be recovered by offsets against amounts due from companies to the Fund.

   (b)  The offsets shall be recorded on Form 216 with minus signs or brackets to distinguish them from debits and shall be accompanied by evidence in support of refunds resulting from premium reductions under § 242.5(a)(1) (relating to adjustment of surcharge). Surcharge credits of amounts less than $10 may be waived in accordance with the insurer's policy relative to small return premiums. Refunds shall be paid directly to the health care provider by the agent or insurer, and upon a showing of proof of payment, the Fund will issue the appropriate credit to the agent or insurer.

§ 242.10.  Self-insurers.

*      *      *      *      *

   (b)  Self-insurers shall pay the surcharge to the Fund accompanied by the reporting forms required under § 242.6 (relating to reporting forms and procedures) within [60] 20 days of the effective date of the self-insurance plan and on an annual basis thereafter within [60] 20 days of the inception of the annual self-insurance period.

§ 242.17.  Compliance.

*      *      *      *      *

   (b)  A health care provider failing to pay the surcharge or emergency surcharge [within the time limits] prescribed will not be covered by the Fund in the event of loss.

   (c)  A health care provider failing to pay the surcharge or emergency surcharge within the time limits prescribed shall be responsible for the payment of interest, and will not be covered by the Fund in the event of loss for the period of time in which a delinquency exists.

   [(c)] (d)  ***

   [(d)] (e)  ***

*      *      *      *      *

   (f)  Late remittance by carriers of surcharges collected from health care providers and late remittance of surcharges due from self-insurance providers shall include interest at the rate prescribed in section 506 of The Fiscal Code (72 P. S. § 506.)

§ 242.18.  Effective date.

   The effective date of this chapter as well as the commencement date for using the prescribed forms [shall be November 1, 1976] is November 26, 1996.

§ 242.21.  Corrections.

   (a)  Corrections to a previously submitted Form 216 shall be clearly marked ''Correction.'' Correction Form 216 shall be separate from other reporting forms and shall identify the original Form 216 being corrected. This form shall contain only the health care providers erroneously submitted.

   (b)  The insurer or self-insurer shall respond with a Correction Form 216 within 20 days after being notified of erroneous submission.

   (Editor's Note:  The following text is new. It has been printed in regular type to enhance readability.)

CHAPTER 246.  MEDIATION

Sec.

246.1.	Purpose.
246.2.	Definitions.
246.3.	Agreement of parties.
246.4.	Administration and delegation of duties.
246.5.	Binding mediation.
246.6.	Date, time and location of mediation proceedings.
246.7.	Mediation sessions.
246.8.	Mediation by document submission.
246.9.	Conclusions of the mediator.
246.10.	Expenses.
246.11.	Confidentiality.

§ 246.1.  Purpose.

   This chapter provides uniform procedures to be used in conducting mediation when primary medical malpractice insurance carriers disagree on a case involving the Fund.

§ 246.2.  Definitions.

   The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

   Act--The Health Care Services Malpractice Act (40 P. S. §§ 1301.101--1301.1006).

   Fund--The Medical Professional Liability Catastrophe Loss Fund established by section 701 of the act (40 P. S. § 1301.701).

   Insurer--The insurance company or self-insurer providing basic coverage insurance.

   Mediation--Meetings between insurers and the Fund, their representatives and a mediator to explore issues, needs and settlement options. Upon the consent of all parties to a mediation proceeding, the mediation shall be binding, and the parties shall be bound by the conclusions of the mediator. Mediation proceedings are confidential and should not be considered public information subject to disclosure under the act of June 21, 1957 (P. L. 390, No. 212), known as the Right-To-Know Law (65 P. S. §§ 66.1--66.4) and the Sunshine Act (65 P. S. §§ 271--286).

   Mediator--An individual having specific training or experience in one or more of the following:

   (i)  Mediation.

   (ii)  Medical malpractice litigation.

   (iii)  Insurance law.

   Party--The Fund, all basic coverage insurers, self-insurers, plaintiffs and all defendants in medical malpractice litigation involving the Fund.

§ 246.3.  Agreement of parties.

   Upon the request of a party, the Fund may provide for a mediator in cases where multiple insurers or the Fund, or both, disagree on a case. The procedures in this chapter apply when any of the parties have agreed to mediation.

§ 246.4.  Administration and delegation of duties.

   Upon the request of a party to a case within the Fund coverage limits, the Fund may provide for a mediator. An individual may not serve as a mediator in a dispute in which that person has a financial or personal interest in the case at issue or the result of the mediation. Immediately upon selection, the selected mediator shall disclose circumstances likely to create a presumption of bias or interest in the outcome of the proceedings or circumstances that may prevent a prompt meeting with the parties. If a party thereafter objects to the mediator on the basis of identifiable bias, interest or unavailability, a new mediator will be selected who is agreeable to all participants in the mediation.

§ 246.5.  Binding mediation.

   If all parties agree that mediation shall be binding, the parties shall be bound by the conclusions of the mediator. As provided by the act, the administration of the mediation and proceedings conducted thereafter shall be confidential and will not be considered public information subject to the Sunshine Act (65 P. S. §§ 271--286). Documents produced for and relating to the mediation shall be considered part of the Fund's claim file, shall be confidential and will not be considered public information subject to disclosure under the act of June 21, 1957 (P. L. 390, No. 212), known as the Right-To-Know Law (65 P. S. §§ 66.1--66.4). If the parties do not agree to binding mediation, the parties should utilize the assistance of an impartial mediator in an attempt to work toward a mutually satisfactory solution, through good faith negotiation.

§ 246.6.  Date, time and location of mediation proceedings.

   (a)  Upon selection, the mediator will work with the parties to establish the time and location of a mediation session. Additional mediation sessions may be scheduled as agreed to by the parties and the mediator. Notice of a mediation session shall be provided to all parties at least 3 working days in advance of the session. Notice may be given orally or through facsimile communication.

   (b)  The mediator may meet with or request information pertinent to the mediation from one or more parties prior to scheduling a mediation session.

§ 246.7.  Mediation sessions.

   (a)  Mediation sessions shall be conducted by the mediator in the manner that would most expeditiously permit full production of all information reasonably required for the mediator to understand the issues presented. The information will usually include relevant written materials and a description of the testimony of each witness. For cases designated by the Fund as complex, the mediator may ask the parties for written materials or information in advance of the mediation session in the manner specified in § 246.6 (relating to date, time and location of mediation proceedings). Mediation sessions in noncomplex cases not requiring testimonial evidence should be completed within 3 hours.

   (b)  At mediation sessions, mediators will conduct an orderly settlement negotiation, considering to resolve or settle, or both, disputes. The mediator may conduct separate meetings with each party in order to improve the mediator's understanding of the respective positions of each party.

§ 246.8.  Mediation by document submission.

   When all parties agree that a dispute will be decided on the basis of document submission, they shall jointly file a signed statement to that effect with the mediator. Each party shall then send two copies of their respective documentation to the mediator and one copy to each other within 7 days of filing with the mediator. The parties will then have an additional 7 days to file answering statements with the mediator and each other.

§ 246.9.  Conclusions of the mediator.

   The mediator shall promptly issue and distribute to all parties the mediator's decision no later than 2 business days from the date of closing of the final mediation session or complete submission of documents by the parties. The decision shall be in writing and shall be signed by the mediator. The decision shall specify the remedy, if any, and there shall be no formal opinion unless all parties agree. If the parties so agree, they will share equally in payment of the additional mediator compensation.

§ 246.10.  Expenses.

   The expenses of witnesses for a party shall be paid by the party producing the witnesses. Other expenses of the mediation, including required travel and other expenses of the mediator, and the expenses of a witness and the cost of proof produced at the direct request of the mediator, shall be borne equally by all parties, unless they agree otherwise. In the case of mediation by document submission, each party will be responsible for costs associated with their own document submission excluding the expenses of a witness and the cost of proof produced at the direct request of the mediator, which shall be borne equally by all parties, unless they agree otherwise.

§ 246.11.  Confidentiality.

   The parties recognize that mediation sessions are settlement negotiations and that all offers, promises, conduct and statements, whether written or oral, made in the course of the proceedings are inadmissible in litigation or arbitration of their dispute, to the extent allowed by law. The parties agree not to subpoena or otherwise require the mediator to testify or produce records, notes or work product in future proceedings. No recording or stenographic record will be made of the mediation sessions. If the parties previously agreed to binding mediation, the conclusions of the mediator shall have the effect of a settlement and will be legally enforceable and admissible in court or arbitration proceedings to compel enforcement.

[Pa.B. Doc. No. 97-1399. Filed for public inspection August 29, 1997, 9:00 a.m.]