Southern District of West Virginia


IN BRIEF

Process summary

Mediation. Under Local Rule 5.01, effective September 1, 1994, any civil case filed in the Southern District of West Virginia may be referred to mediation. See below.

Neutral evaluation. Local Rule 5.01 also authorizes an informal neutral evaluation program in which a judge serves as the evaluator.

Settlement conferences. A judicially hosted settlement conference is held in every case before trial.

Of note

Obligations of counsel. Attorneys are required to discuss ADR options with their clients and with each other and be prepared to discuss ADR options with the judge.

Information from court. The court is developing information for litigants about the court's new ADR services.

For more information

Ronald D. Lawson, Clerk of Court, 304-347-5169


IN DEPTH

Mediation in West Virginia Southern

Overview

Description and authorization. Under Local Rule 5.01, effective September 1, 1994, any civil case filed in the Southern District of West Virginia may be referred to mediation. In cases selected by the assigned judge mediation is mandatory. Any party may also suggest mediation by presenting to the clerk a completed mediation suggestion form. When a case is selected for mediation, the assigned judge appoints a mediator from the court's roster of attorneys or permits parties to select a mediator from among three mediators named by the judge. At the conclusion of each mediation conference, the mediator must report to the assigned judge whether the case was resolved and, if not, may make suggestions for early resolution of the case. There is no fee for the court's mediation service.

Number of cases. Between September 1994, when the program was implemented, and December 1994, no cases were referred to mediation.

Case selection

Eligibility of cases. Almost all civil case types are eligible for referral to mediation, except habeas corpus cases and motions attacking a federal sentence; procedures and hearings involving recalcitrant witnesses before federal courts or grand juries pursuant to 28 U.S.C. § 1826; actions for injunctive relief; review of administrative rulings and Social Security cases; 28 U.S.C. § 1983 prisoner cases and Bivens-type actions in which the plaintiff is unrepresented by counsel; condemnation actions; bankruptcy proceedings appealed to this court; collection and forfeiture cases in which the United States is the plaintiff and the defendant is unrepresented by counsel; and Freedom of Information Act proceedings.

Referral method. The assigned judge may refer a case to mediation without party consent. Parties may also request mediation by giving the clerk of court a mediation suggestion form. A request by one party will not be disclosed to anyone except the judge. After a case has been selected for referral, notice is sent by the assigned judge to all counsel and unrepresented parties.

Opt-out or removal. Cases may be excused from mediation if any party shows good cause.

Scheduling

Referral. The referral to mediation may occur at any time appropriate to the case.

Written submissions. At least ten days before the mediation conference, all parties must submit a written case summary of five pages or less to the clerk and to all other parties. Supporting documents may be attached. The clerk sends the materials to the assigned mediator, but they are not included in the court file.

Mediation session. The mediation session must occur before the final pretrial settlement conference in the case. The notice of referral to mediation sets the date, time, and place for the mediation conference, which is generally held at the courthouse.

Length and number of sessions. It is anticipated that generally one session will be held per case, lasting about three hours.

Program features

Discovery and motions. All other activities in the case go forward during the mediation process.

Party roles and sanctions. Attendance at the mediation conference is mandatory for all trial counsel and the parties or party representatives with full authority to make final, binding decisions. Failure to attend may result in sanctions.

Outcome. Once the mediation session is completed, the mediator must prepare a report and give it to the assigned judge. The report states whether the case was resolved and, if not, may make suggestions for early resolution of the case. A copy of the report is sent to all counsel of record and unrepresented parties but is not filed in the public case records. The mediator may not refer to or discuss with the assigned judge any information divulged by any party or counsel during the mediation conference unless he or she is authorized by that party or counsel to do so.

Confidentiality. All mediation proceedings, including any statements made by any party or attorney, are privileged and may not be reported, recorded, placed in evidence, made known to the assigned judge, or construed for any purpose as an admission. No party is bound by anything said or done in the mediation conference unless settlement is reached, reduced to writing, and signed by the parties.

Neutrals

Qualifications and training. To be admitted to the court's roster of approved mediators, an attorney must attend a mediation training program conducted by the state bar association.

Selection for case. The mediator is either selected by the assigned judge from the court's roster of attorneys or by the parties from among three mediators chosen from the roster by the assigned judge.

Disqualification. This subject has not been addressed by the court.

Immunity. The court has not addressed this issue.

Fees. Mediators provide their services without monetary compensation.

Program administration

The clerk's office administers the mediation program, with judicial oversight as needed.


Excerpted from ADR and Settlement in the Federal District Courts: A Sourcebook for Judges & Lawyers, 1996, a publication of the Federal Judicial Center and CPR Institute for Dispute Resolution