Introduction.  On July 14, 1998, the Supreme Court of Appeals of West Virginia adopted an Administrative Order establishing a pilot program for mediation of workers' compensation cases to begin in July 1998 with case selection and to begin in September 1998 with mediation for a period of twelve (12) months. All workers' compensation cases filed after July 23, 1998 are subject to the following new rule of appellate procedure.

                 The Court may direct attorneys, and in appropriate cases the parties, to participate in one or more conferences to address any matter that may aid in the disposition of the proceedings, including the simplification of issues and the possibility of settlement. A conference may be conduced in person or by telephone and be presided over by a judge or other person designated by the Court for that purpose. Before a settlement conference, attorneys must consult with their clients and obtain authority to settle the case. As a result of a conference, the Court may enter an order controlling the course of the proceedings or implementing any settlement agreement.

    The program is governed by Workers' Compensation Mediation Program Protocols approved by the Court.

Purpose. The workers' compensation mediation project was established to: (1) return control of the case to the parties; (2) allow a more speedy resolution of the case; (3) reduce the costs paid by the parties; (4) reduce the Court's caseload; and (5) reduce the Court's time spent on workers' compensation cases.

Case Selection. Most cases are selected by the Court shortly after the filing of the appeal beginning with appeals filed during July 1998.

Objection to Mediation. The Protocols allow parties (15) days from the date of receipt of notice referring a case to mediation in which to file with the Court a written objection to mediation stating the grounds for the objection. Parties are to use Form 2, Objection to Mediation sent with the notice.  The parties will receive a timely written response to the objection which may or may not modify the mediation referral.

Mediation Format. Selected cases may be mediated using one of four (4) formulas: (1) a Settlement Week where many cases are scheduled for mediation and are mediated by volunteer mediators; (2) in-house mediation conducted by Court employees who have been trained in mediation; (3) pro-bono mediation arranged for by the parties; and (4) paid mediation arranged and paid for by the parties.

Selection of the Mediator. If the Court designates a mediator, it will assign in-house mediators and volunteer Settlement Week mediators who have completed appropriate mediation training, have experience mediating and who have complete training in the area of Workers' Compensation law. Parties who arrange their own mediation may use any person mutually agreed upon to mediate the case and who is listed on the State Bar maintained list of persons willing and qualified to mediate. Parties who arrange their own mediation are responsible for payment of any fees required by the mediator chosen to conduct the mediation.

Scheduling Mediation. The parties will receive a notice of the date of a Settlement Week mediation or an in-house mediation. Parties who select their own mediator must notify the Court of the mediator's selection within thirty (30) days after receipt of the notice referring the case to mediation and must conduct the mediation within forty-five (45) days after receipt of the same notice, unless otherwise agreed to by the parties or ordered by the Court. It is anticipated that mediation will last for approximately three hours.

Where to Mediate. The Court will notify the parties when and where the mediation is to take place.

Preparation for Mediation. Counsel for all parties are required to consult with their clients before mediation is held and to obtain authority to settle the case. They should be fully aware of what needs and interests of their clients must be met before a settlement could take place, as well as the strengths and weaknesses of each of the parties on the issues. The parties are required to submit a Workers' Compensation Mediation Program Mediation Statement on Form 3 sent with the notice of mediation.

    The discussion of the case should be brief (only the form and one additional page may be submitted) relating the major aspects of the dispute but not going into the nuances. It should be neutral in tone and truthful. Note that the response allowed under Rule 13A(d), Rules of Appellate Procedure, is held in abeyance pending the mediation conference.

Authority to Settle. The Administrative Order adopted by the Court mandates that counsel consult with their clients and "obtain authority to settle." The Court recognizes that authority to settle is something less than a blank check; however, the Court expects that counsel will come with realistic authority based upon the issues presented, the probabilities of various possible outcomes of the appeal, the expenses of continued litigation and the consequences of continued delay.

What Parties Must Attend. In all cases, the attorneys for the parties must participate. The Administrative Order requires the parties to participate in appropriate cases to insure settlement.

Mediation Process. In general, the mediation conference will include an initial joint session with all parties explaining the dispute to the mediator who may ask clarifying questions. The focus of the discussion should be the issues on appeal. The purpose of this joint discussion is not to decide the case, but to understand what the issues are and to evaluate the risks on appeal. The mediator may then caucus with parties individually to identify interests and positions to begin generating options. Every effort will be made to generate offers and counter-offers until the parties either settle or know the case cannot be settled and by how much it cannot be settled. Upon agreement, the parties will again meet together to review the terms of the settlement.

Confidentiality. The settlement discussions are confidential and the mediator may not disclose any information in any proceeding relating to or arising out of the dispute mediated. Upon completion of the settlement discussions, the mediator completes a Mediation Conference Report reporting only that: (1) settlement was reached; (2) no settlement was reached; (3) settlement discussions were continuing and a further report would be submitted to the Court on a date not more than ten (10) days later; or (4) that certain named individuals did not attend the mediation.

Voluntary Settlement. While participation in mediation is mandatory, the parties retain complete control to decide whether to settle the case. No party may be forced to agree to a settlement.