Appellate mediation project is approved

By Peter Vieth, Virginia Lawyers Weekly – 6/20/2018

VIRGINIA BEACH — Virginia’s appellate courts will launch pilot mediation projects for civil cases next year.

A study committee recommended in April that the courts give appellate mediation a try. The Supreme Court of Virginia gave the green light in May.  The pilot mediation programs will run for two years, beginning Jan. 1.

In the Supreme Court, mediation will be available only in certain civil cases where a petition for appeal has been granted. In the Court of Appeals, mediation will be available in equitable distribution cases and/or related attorneys’ fee disputes.

A year of study

The planning process started a year ago. In June 2017, a Virginia alternative dispute panel told Chief Justice Donald W. Lemons about growing interest in an appellate mediation program and recommended a study.

“We had done a survey and we were one of the few states that did not have some formal way of promoting mediation,” said Deborah W. Blevins, immediate past president of the Joint Alternative Dispute Committee of the Virginia State Bar and the Virginia Bar Association. She spoke June 14 at the Virginia State Bar Council meeting in Virginia Beach.

In July, Lemons asked the panel to do the study and report to him.

The JADRC recruited representatives of the courts, the Division of Dispute Resolution Services at the Supreme Court’s administrative office, the JADRC council and appellate lawyers. The nine-member study committee met four times and recommended pilot projects, with specific training and certification for appellate mediators.

“Appellate mediation is sort of a slightly different species of the same genus as regular mediators: People who will be trained specifically to deal with mediation of matters that are in the appellate courts,” said L. Steven Emmert, a VSB representative on the study panel.

Evaluation after two years

The mediation project will not be used with criminal cases. In domestic relations matters, the program would apply only to equitable distribution disputes, Emmert said.

During the two-year pilot project, there will be semiannual reports to the clerks of court and, at the end, a recommendation on whether the project should continue, Emmert told Bar Council members.

“We’re optimistic that this is going to produce something that will enable people to have more flexibility in resolving matters than courts can possibly do, particularly an appellate court that can either affirm or reverse,” Emmert said.

The report from the Special Committee, as revised by the Supreme Court, is available on the VBA website at cmte to study.pdf.  The committee recommends that attorneys in appropriate cases be sent letters from the clerks to describe mediation and how to participate. Pro se parties would not be eligible, under the committee proposal.

The Judicial Council will be asked to approve training and certification standards.

Lemons said the mediation program should offer an alternative to the expense and stress of an appeal.

“A successful mediation allows the parties to ‘own’ the outcome. No case will be required to be mediated; rather, we are simply offering a creative alternative to those who want it,” Lemons said in a news release.

The Court of Appeals also welcomed the new initiatives, according to Chief Judge Glen A. Huff. “Satisfaction of the parties is best accomplished through voluntary settlements rather than decisions imposed by the Court,” Huff said.