Is It Time to Revise Mediation in WV?

(Editor’s Note: I have received some constructive criticism that my effort to promote common mediation rules for all courts is an over-reach. I understand that criticism, and will try to address it. The rules for circuit and family courts are detailed, and the drafters have a proprietary interest in them. And, standards must be maintained, and methods in place for the payment of mediators. I would opt for ambiguity so that such things can get sorted out in the process, just like the Founders did when they moved from the Articles of Confederation to the U.S. Constitution.)

But I still answer the mediation question above with a resounding “Yes!”. Here are my thoughts:

1. I wrote of the history of mediation in W.V. back in 2010: https://hunterlawfirm.net/mediation-collegiality-and-professionalism/ .
2. The limitation of family court mediation to “children’s issues” was a terrible mistake. It led to some terrible deals and inhibited the implementation of mediation in family court and of lawyers’ participation in the mediation process. Mediation should be for “children’s issues”, property division, debt division, alimony, everything. Special challenges when domestic violence and substance and alcohol abuse must be recognized and dealt with.
3. And I elaborated on some of the differences between “civil mediation” and “family mediation” in 2012: https://hunterlawfirm.net/a-foot-in-each-camp/ .
4. I also wrestled with the differences between juvenile abuse and neglect and family court: https://hunterlawfirm.net/children-guardians-ad-litem-the-law-and-society/ .
5. And I really struggled to capture the myriad conflicts and overlaps of what is generally called “custody”: https://hunterlawfirm.net/the-maze-of-wv-child-custody-issues-just-dropping-crumbs-wont-get-you-out/
6. But, that’s exactly my point. Differences in courts, and the assumptions under which the courts operate, make detailed mediation rules, and technical barriers to mediation, unworkable.
7. One exception is criminal court, as I cannot foresee a way for mediation to be an aid to plea bargaining.  But, prosecutors and defense counsel would do well to master negotiation and communication techniques that mediators and counsel use in effectively resolving their cases.
8. So, also is a mental hygiene commitment hearing a good venue for mediation.
9. As for the impediments to passing a new law, last year I worked with several others, including lawyer Tom O’Neill and State Senator Charles Trump, in obtaining passage of “The Family Court Restraining Order Law”, WV Code Sec. 51-5A-5a. These orders prohibiting bad behavior that falls short of being domestic violence are being entered dozens of times a week all over the state. We kept the statute simple, and it seems to be working. I believe that passage of a new mediation law will also benefit WV families and litigants!
10. Lawyers, Judges, Mediators, and Legislators need creativity and innovation to speed up our courts and expand justice to a greater number. Justice delayed, and justice that only a few can afford, are NOT justice.
11. Last week, I glanced over the “rules of mediation” in each court and decided that you would not want a detailed description of them. Suffice it to say I think the rules are too technical and picky.
12. And the “screening” provisions for family court do nothing but discourage mediation and foolishly try to predict which cases can be settled and which cannot.
13. The default expectation should be that parties go to mediation, unless, upon proper motion, a party convinces the court it will be dangerous or endanger their health. If there are security concerns, the courts should have discretion to deal with that.
14. I say that “the default” should be that parties to litigation should be expected to go to mediation and to participate in good faith.
15.  When I say “all parties”, I mean the parties to civil suits in circuit courts, in magistrate courts (subject to funding and the ability of parties to pay, as this is “small claims court”), family court, and to fiduciary and guardianship hearings.
16. And, to the extent there are non-party “players” such as grand-parents, interested persons, step-parents, etc, let them come mediate, but only if the parties agree. The more that “the players” can participate in negotiations, the better the chance the settlement will “take”.
17. Persons subject to mediation should be given a brochure explaining mediation in some detail, including, for self-represented litigants, an explanation that they should come to mediation with an open mind, prepared to be flexible, and to put children first when children are involved. I stress “when children are involved”, as my critic points out that suits arising from a rear end collision or medical malpractice do not involve the children. I think people are smart enough to figure out what “When children are involved.” means.
18. They should be reminded that this is their chance to fashion a monetary settlement,  settle a law suit, parenting plan, or property settlement agreement by themselves, without technical rules of evidence, or time constrained hearings. People can fashion settlements that no court can order which are tailored to their needs and want, while the court, acting on conflicting information, is unlikely to come up with anything better for them, their families, or their children.
19. Here is an informal summary of my suggestions for the new mediation law or rule, which will be similar for all courts, magistrate, family, circuit, and business.
20. Whereas, as the alternate dispute mechanism called mediation has evolved and matured in WV.
21. Whereas the rules for mediation are different, or non-existent, in various courts;
22. Whereas, it is important, for the full realization of the benefits of mediation, that mediation be considered for every case, (except criminal and mental hygiene involuntary commitment proceedings), and that referral to mediation should be the default option, with opting out being granted only for good cause shown.
23. The parties should confer early and determine if they can agree on a mediator and at least one alternate.
24. Represented parties should have their counsel present at this critical stage of the proceedings.
25. No mediator will be permitted to mediate in WV Courts if they object to the presence of a party’s lawyer at mediation. They and the lawyers must learn to collaborate and cooperate. Civility is expected.
26. Lawyers admitted to practice in each court are expected to have obtained necessary training to meet the standards that have been established by the WV Supreme Court of Appeals.
27. Lawyers may opt in or out of the sliding fee scale of the WV Supreme Court of Appeals, but will be bound by the Supreme Court’s fee Rules if they opt in. They will not be part of the referral rotation of the court if they have opted out of the sliding scale if the court, such as family court, utilizes it, but parties may still use such lawyers by mutual agreement.
28. Where public funds are not available, mediation is still the default unless the court permits “opting out” for financial hardship.
29. Parties will not be required to meet face to face unless both parties and the mediator concurs. Caucusing is encouraged, and participation by phone is permitted if agreed to by all parties and the mediator.
30. Represented parties who sign a mediated agreement or parenting plan will be bound to the terms of the plan under the law of contract.
31. Unrepresented parties will be expected to keep their word and be bound by their signed mediated agreement unless there is a serious mistake of material fact or law. It will be discretionary with the Court whether to impose the agreement signed by an unrepresented party or parties.
32. Non-parties such as family members, mediators in training, or interns will not be present at mediation without advance notice and agreement. The court may, upon proper motion, permit such a person to accompany the litigant.
33. The Court may include appropriate provisions to assure security, such as requiring mediation to be at the courthouse, or even to require parties to arrange for private security, or by ordering mediation via conference call or FaceTime or Skype, or their equivalent.
34. Commissioners, such as fiduciary or mental hygiene, will administer these mediation rules as the courts do, with the same discretionary powers, subject to the jurisdiction of the court under which they operate.
35. Parties are encouraged to utilize other alternative dispute mechanisms such as arbitration or “med-arb” so long as all parties agree and so long as the mechanism is stipulated to in writing.
36. The confidentiality of the mediation will be preserved, although mediators are obligated to inform the court if a party fails to appear, fails to pay timely, acts in a disruptive manner, or fails to mediate in good faith.
37. The person attending mediation must have “full settlement authority”. When that person is an insurance adjustor, they will have the power to authorize settlement for the full demand or limits of coverage, unless stipulated otherwise by all parties and the mediator in writing.
38. Violations may be enforced by the full contempt powers of the court.

In summary, I believe that if these mediation rules are implemented the efficiency, effectiveness, and justice of our courts will be measurably improved.

This post was written by Burton Hunter