West Virginia Judiciary

Rules of Practice and Procedure for Family Court

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Table of Contents Full Table of Contents
  1. Mediator panels; training and qualifications; information reporting
  2. Premediation screening
  3. Procedure following receipt of abbreviated premediation screening report
  4. Mediation fees
  5. Procedure for mediator disqualification
  6. Mediation procedures
  7. Court's consideration of mediated agreement
  8. Prohibition of dual relationship in mediation and parent educations
  9. Immunity

Mediator panels; training and qualifications; information reporting
  1. Panels; training and qualifications. — Each family court shall establish a panel of mediators meeting the qualifications and training requirements established by the supreme court of appeals. All panel members shall be subject to approval by the Supreme Court of Appeals.
  2. Information reporting. — All court personnel and all persons providing premediation screening or mediation shall provide the supreme court of appeals such information as the Court determines necessary for assessing these programs.

[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005.]


Premediation screening
  1. Orders requiring premediation screening. — No later than five days after the scheduling conference or other hearing at which the court first determines that the parties do not have an agreed parenting plan, the court shall order both parties to complete a premediation screening process for the purposes set forth in W. Va. Code, § 48-9-202(b). The order shall require the parties to undergo premediation screening within 14 days of the date of the conference or hearing; inform the parties of the dates, times, and places at which premediation screening will be held; and require the parties to meet separately and privately with a screener.
  2. Premediation screening procedures. — All premediation screening shall employ the required premediation screening forms; and shall be conducted by individuals, who may be family court personnel, meeting the qualifications and training requirements established by the supreme court of appeals. Screeners may report suspected child abuse or neglect as provided by W. Va. Code, § 49-6A- 2 and shall so inform the party being screened prior to the commencement of screening. Other than the abbreviated premediation screening report, no notes or other documents used in premediation screening are part of the record.
  3. Report of premediation screening. — No later than five days after the conclusion of premediation screening the screener shall send a copy of the abbreviated premediation screening report to the court and the parties. The report shall be made on the required form; identify the existence of any of the elements listed in W. Va. Code, § 48-9-11--202(b); and set forth the screener's recommendations.

[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered and effective December 1, 2005; and by order adopted May 22, 2007, effective July 1, 2007.]


Procedure following receipt of abbreviated premediation screening report
  1. Parties assigned to mediation. — Within five days of receiving the abbreviated premediation screening report the court shall enter an order assigning a mediator to parties recommended for mediation. The assignment order shall (1) set the mediation fees in accord with the approved sliding scale; (2) require the mediator to contact the parties and arrange for mediation to begin by a date certain; (3) require that parties subject to court-ordered mediation discuss only matters relating to the development of a parenting plan; (4) set the next hearing date; (5)┬áset the date all mediation related to the development of a parenting plan shall be completed the date should be within 45 days of the assignment order or before the next hearing date, whichever is sooner;(6) direct that each party be provided a copy of the approved mediation process document; and (7) notify the parties they are required to read that document or have it read to them, sign the acknowledgment, and bring the acknowledged document to the first mediation session. The assignment order shall not order the parties to discuss matters related to distribution of property, spousal support, child support (other than the effect of the parenting plan on the choice of child support formula) or any other financial matters.
  2. Subsequent mediation for parties assigned to mediation. — Once a parenting plan or a partial parenting plan has been presented to the court, or the court-appointed mediator notifies the court that the parties have failed through mediation to develop a parenting plan, the parties may, of their own accord, attend subsequent mediation sessions related to the distribution of property, spousal support, child support or other financial matters. The parties shall select their own mediator. That mediator shall not be subject to the Supreme Court's approved sliding fee scale for mediators.
  3. Parties screened out of mediation. — If the abbreviated premediation screening report reveals the existence of any of the elements listed in W. Va. Code, § 48-9-202(b), and/or recommends that the screened parties should not be required to mediate, the court shall dispense with mediation; but as provided in section 202(b), the court may consider alternatives which may aid the parties in establishing a parenting plan. The court shall not order the parties to participate in any alternative which is not conveniently available and affordable to the parties. If the court orders the parties' participation in any such alternative it shall follow the premediation and mediation procedures and all time limits shall apply. If the court dispenses with mediation, within five days a scheduling order shall be entered and sent to the parties informing the parties that they have been screened out of mediation, and setting a date certain for the next hearing.

[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered and effective December 1, 2005; and by order adopted May 22, 2007, effective July 1, 2007.]


Mediation fees

Mediation services shall be ordered at hourly fees which are affordable to the parties and consistent with the approved sliding scale. The court may apportion the costs of mediation between the parties based on their abilities to pay. No mediator may charge a fee for court ordered mediation greater than the fee provided by the approved sliding scale.

[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005.]


Procedure for mediator disqualification

All mediators shall be subject to Canon 3 of the Code of Judicial Conduct regarding disqualification. Any party may file a written motion to disqualify a mediator for good cause. The court shall rule on the motion within ten days of the date the motion was filed. If the motion is granted, the court shall enter an order within five days which assigns another mediator.

[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005.]


Mediation procedures
  1. General provisions. — All parties shall be prepared to negotiate. Counsel may attend mediation. No party shall be compelled to consent to a mediated agreement.
  2. Procedure prior to the commencement of mediation. — If a party arrives at the first mediation session without having read the mediation process document, or having had it read to them, the mediator shall read the document to that party and require the party to sign an acknowledgment to that effect. Prior to the commencement of mediation the mediator shall inform the parties the mediator may report suspected child abuse or neglect as provided by W. Va. Code, § 4-6A-2.
  3. Procedure upon conclusion of mediation. — If a mediated agreement is reached, the mediator shall inform the parties that the agreement has no binding legal effect until it is adopted by court order, and that either party may withdraw from the agreement prior to the court's adoption of the agreement. Within five days of the conclusion of mediation, the mediator shall reduce any mediated agreement to writing on the required form; prepare a Mediation Outcome Report on the required form; file the agreement with the circuit clerk; send copies of the agreement to the parties; and send a copy of the report to the court.
  4. Confidentiality. — All mediation proceedings, including premediation screening, are confidential settlement negotiations subject to Rule 25.12 of the Trial Court Rules. All persons involved in premediation screening and mediation shall preserve the confidentiality of negotiations, of all written materials utilized in the processes, of all information obtained in the processes, and of all agreements; and with the exception of the abbreviated premediation screening report, the Mediation Outcome Report, and any mediated agreement, shall keep such matters confidential from the court. No premediation screener or mediator may be subpoenaed, 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.

[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005.]


Court's consideration of mediated agreement

Upon receipt of a mediated agreement the court shall review the agreement to determine if it is knowing, voluntary, and in the best interests of the parties' children. The court shall cause the child support formula to be calculated based on the allocation of custodial responsibility in the parenting plan contained in the mediated agreement; and by way of comparison, shall cause the child support formula to be calculated in accordance with W. Va. Code, §§ 48-13-401 to 404, 501, and 502. After being informed on the record of the mediated agreement's child support implications, if the parties assent to the agreement on the record, and if the court determines there is no impediment to the validity of the agreement, the court shall incorporate the mediated agreement in an order.

[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005.]


Prohibition of dual relationships in mediation and parent education

No individual may serve in the same case in more than one of the following roles: parent educator, attorney, guardian ad litem, screener, mediator, custody investigator. An organization may provide more than one of these services in the same case if the services are provided by different individuals, the organization has established written procedures to prohibit the exchange of information between such individuals, and the court approves of these procedures; however, no organization may provide more than one of these services in the same case if the arrangement violates the code of ethics, conduct, or professional responsibility of the organization or the individuals providing the services.

[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005.]


Immunity

Mediators and premediation screeners shall have immunity in the same manner and to the same extent as a family court judge.

[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005.]