Arnold J. Janicker
ajj@jenkinsfenstermaker.com

Alternative Dispute Resolution in West Virginia

The number of civil lawsuits filed in West Virginia’s courts has increased dramatically in recent years. To help ease crowded dockets, Circuit Courts (our state trial courts) routinely order civil litigants to try and attempt to settle their claims through mediation or arbitration, collectively referred to as alternative dispute resolution. While the Court cannot order the parties to settle, and attempts to settle are not always successful, mediation and arbitration offer a low-cost alternative to resolving claims.

Mediation

Mediation is the most frequently used alternative dispute resolution process nationally and in West Virginia. Mediation is essentially an informal negotiating process whereby a third party mediator attempts to resolve disputed issues between parties, with the goal of reaching a settlement of all claims. The mediator can be chosen by agreement between the parties, or appointed by the Court. The procedure used in mediation is informal and flexible, and can be set by the mediator or the parties. The parties often provide the mediator with confidential written submissions, wherein they present “their side” of the dispute to the mediator.

The mediator generally brings the parties together for a negotiating session, which in most cases, lasts for one or two days. The parties generally are kept apart, with the mediator conducting a type of shuttle diplomacy between the sides. The mediator will look for common ground between the parties in an attempt to resolve disputed issues. The mediator cannot impose a solution, but tries to persuade the parties to reach an agreement. If the parties are able to resolve their claims, the mediator reports that fact to the Court. Once the settlement terms are reduced to a written form and executed, the lawsuit is compromised and settlement effectuated. The mediator informs the Court of the settlement, and ultimately, the case is dismissed.

Arbitration

Arbitration is a more formal process than mediation, but there are no standard procedures as there are in litigation. The principal differences between arbitration and mediation are 1) that the arbitration procedure can be more like litigation than mediation, and 2) when binding, decisions can be imposed and enforced. In certain circumstances, there may one arbitrator, or a panel of arbitrators, who sit as judges. The arbitrator(s) may review documentary evidence, hear from fact and expert witnesses, and issue a decision based on a record. In binding arbitration, the arbitrator’s decision binds both parties, and in most cases, is not reviewable by a court. When Arbitration is non-binding, the process generally is more like mediation, albeit with more formal procedures.

Benefits of Alternative Dispute Resolution

We have seen numerous benefits to mediating or arbitrating disputes. Particularly in mediation, the parties have more outcome-control than they would in Court, as they can negotiate and compromise claims, rather than having a decision imposed upon them. Fees and costs associated with mediation or arbitration are much lower than those associated with litigation. Finally, claims are resolved more quickly than in litigation, where overcrowded court dockets delay trial.

Drawbacks of Alternative Dispute Resolution

Parties who settle claims in mediation or arbitration can be unhappy with the results, even though agreeing to the terms of the settlement. Occasionally, a litigant may not be satisfied with voluntarily resolving a claim, and will seek judicial resolution, or a decision by a jury.  Finally, in cases where mediation and/or arbitration are not successful and a case proceeds to trial, the litigants have increased costs and expenses associated with the failed attempt to resolve their claims in an alternate setting.

Conclusion

Alternative dispute resolution processes offer a relatively low-cost and expedited way to resolve some claims particularly where the parties do not believe an “all or nothing” approach is practical. Having a clearly defined goal is essential for resolving a claim in either mediation or arbitration. Consultation and working closely with counsel will lead to a positive outcome.

For more information regarding alternative dispute resolution, feel free to contact Arnold Janicker or Thomas Scarr at 304-523-2100.