Section 1. Scope. These rules shall govern mediation of Workers' Compensation in the Supreme Court.

Section 2. Mediation Defined. Mediation is an informal, non-adversarial process whereby a neutral third person, the mediator, assists parties to a dispute to resolve by agreement some or all of the differences between them. In mediation, decision-making authority remains with the parties; the mediator has no authority to render a judgment on any issue of the dispute. The role of the mediator is to encourage and assist the parties to reach their own mutually-acceptable settlement by facilitating communication, helping to clarify issues and interests, identifying what additional information should be collected or exchanged, fostering joint problem-solving, exploring settlement alternatives and other similar means. The procedures for mediation are extremely flexible, and may be tailored to fit the needs of the parties to the particular dispute.

Section 3. Selection of Cases for Mediation. Pursuant to these rules and the July 14, 1998 Administrative Order of the Court, the Court may, on its own motion, upon motion of the parties, or by stipulation of the parties, refer a case to mediation (Form 1, Mediation Conference Request). Upon receipt of notice referring a case to mediation, the parties shall have fifteen (15) days within which to file a written objection with the Court, specifying the grounds. Such objection shall be promptly considered, and the referral may be modified for good cause shown (Form 2, Objection to Mediation). A case ordered for mediation shall remain on the court docket, and the response allowed under Rule 13A(d), Rules of Appellate Procedure, is held in abeyance pending the mediation conference.

Section 4. Listing of Mediators. The West Virginia State Bar shall maintain and make available to interested parties and the public, a listing of persons willing and qualified to serve as mediators in this program. The State Bar listing shall be open to all persons who meet the program's qualifications of training and experience, and have completed the application required by the State Bar.

Section 5. Selection of Mediator. Within thirty (30) days after receipt of notice referring a case to mediation, the parties, upon approval of and notice to the Court, may choose their own mediator, who must be a person listed on the State Bar listing. In the absence of such agreement, the Court shall designate the mediator.

Section 6. Compensation of Mediator. If the parties by their own agreement choose a mediator who requires compensation, then the parties shall by written agreement determine how the mediator will be compensated by the parties. If the Court designates the mediator, then it shall whenever possible select a mediator who is willing to serve without compensation exceeding the Court paid honorarium of $70 per case mediated. The Court shall reimburse a volunteer mediator for reasonable and necessary expenses, according to the Court travel regulations.

Section 7. Mediator Disqualification. A mediator shall be subject to Canon 3 of the Code of Judicial Conduct regarding disqualification for partiality or conflict of interest. Any party may move the Court to disqualify a mediator for good cause. In the event a mediator is disqualified, the parties or the Court shall select a replacement in accordance with rules 5 and 6.

Section 8. Provision of Preliminary Information to the Mediator. The parties must provide a statement summarizing the party's position on Form 3, Mediation Statement. The statement shall not exceed two pages and must be received by the Clerk of the Court no later than three (3) days before the scheduled mediation.

Section 9. Time frames for Conduct of Mediation. Unless otherwise agreed by the parties and the mediator, or ordered by the Court, the mediation session shall be conducted within forty-five (45) days after receipt of notice referring the case to mediation. The mediator is empowered to set the date and time of all mediation sessions, upon reasonable notice to the parties.

Section 10. Appearances; Sanctions. The following persons, if furnished reasonable notice, are required to appear at any mediation session scheduled by the mediator, unless excused by the mediator or the Court: (1) each party, or the party's representative having full authority to settle without further consultation; (2) each party's counsel of record having full authority to settle without further consultation; and (3) a representative from the Workers' Compensation Division with full settlement authority shall be present if the employer is not represented by counsel and/or if the second injury fund is involved. If a party, or its representative, counsel, or the Division, when the Division's presence is required, fails to appear at a duly noticed mediation session without good cause, the Court upon motion may impose sanctions including an award of reasonable mediator and attorney fees and other costs, against the responsible party.

Section 11. Participation. No party may be compelled by these rules, the Court or the mediator to settle a case involuntarily or against the party's own judgment or interest. All parties involved in mediation, however, and their respective representatives, counsel and, shall be prepared to negotiate openly and knowledgeably about the case in a mutual effort to reach a fair and reasonable settlement.

Section 12. Confidentiality of Mediation Process. Mediation shall be regarded as confidential settlement negotiations, subject to Rule 408 of the Rules of Evidence. A mediator shall maintain and preserve the confidentiality of all mediation proceedings and records. A mediator shall keep from opposing parties confidential information obtained in an individual session unless the party to that session or the party's counsel authorizes disclosure. A mediator may not be subpoenaed or called to testify or otherwise be subject to process requiring disclosure of confidential information in any proceeding relating to or arising out of the dispute mediated. To the extent that the law may allow any discovery or testimony from the mediator, the parties waive this right to confidentiality.

Section 13. Immunity. A person acting as mediator under these rules shall have immunity in the same manner and to the same extent as a circuit court judge.

Section 14. Enforceability of Settlement Agreement. If the parties reach a settlement and execute a written agreement, the agreement is enforceable in the same manner as any other written contract.

Section 15. Report of Mediator. Upon completion or termination, the mediator shall report to the court the outcome of the mediation (Form 4, Mediation Report).

Section 16. Statistical Information. The Court shall determine the need and method for statistical reporting on disputes referred for mediation under these rules. The mediators, parties and counsel shall cooperate with requests for information under this rule.