West Virginia Judiciary

Business Court Division Orders

Business Court Division Overview

Emerging Fronts in Alternative Dispute Resolution: Judicial Mediation in West Virginia's Business Court

By: Judge Christopher C. Wilkes

The Alternative Dispute Resolution (ADR) procedures that have become commonplace with civil litigation in American jurisdictions are undoubtedly a step forward in appropriately and efficiently resolving disputed cases. As has become apparent with the recent rise in business courts in the United States, "[t]he expedited resolution, preservation of the underlying business relationship, and decreased litigation/legal expenses offered with ADR" are especially appealing to those with business disputes2. Mediation, one type of ADR, may be the best solution for business because it allows for party-driven solutions. Early evidence has shown the success of ADR with business. In fact, a 1997 study showed that 87% of Fortune 1,000 companies had used mediation during the past three years3. Considering that business courts and ADR share the common goal of efficient and expedient resolution, it is not surprising that ADR, and especially mediation, is finding success with business disputes.

In West Virginia, the Business Court Division (BCD) has expanded on a relatively new form of ADR, Judicial Mediation, by bringing the practice to complex, high-dollar controversies4. When a case is assigned to the BCD, the Division, pursuant to its authority to develop and implement case management and trial methodologies, assigns a resolution judge in addition to a presiding judge. The resolution judge manages the ADR possibilities, and serves as an experienced and trained mediator. This process has allowed the parties to resolve cases by using outside-the-box remedies which meet the complex needs of the adversarial parties. The resolution judge, not being constrained by purely legal remedies, can use a combination of legal relief and practical business sense to assist in facilitating suitable settlement possibilities, which may not be available if the matter proceeded to trial.

Successful mediation conducted by a resolution judge can be attributed to several factors. Parties gain a unique advantage in a judicial mediator, who makes evaluation decisions on a day-to-day basis. Accordingly, a judge’s evaluative opinion of a case is often viewed with more legitimacy by litigants5. This aspect of institutional respect that comes with the robe can be a great tool in getting parties to properly value their case, which may often be a more difficult task with a non-judicial mediator. Notably, the BCD’s Judicial Mediation process does not preclude private mediation or joint mediation with judges and private mediators, including attorneys or experts, provided that the parties agree. This type of mediation, where one neutral has expertise as an adjudicator and another has expertise as a practitioner (either in a relevant field or in litigation) can be especially beneficial to resolving cases6. The BCD’s approach allows the Court and parties to tailor an ADR approach which will yield the best result. Thanks to this flexibility and the use of Judicial Mediation, the BCD has yielded positive results in the efficient resolution of complex cases which would otherwise be necessarily lengthy and costly.

Furthermore, mediation in business litigation is of significant benefit to the legal community. The more efficient resolution of cases allows for attorneys and judges to potentially handle more cases. Correspondingly, the expeditious resolution of complex cases, which are typically time-consuming and drawn out, can significantly aid in reducing clogged dockets and caseloads. Indeed, "[r]esearch …in Ohio courts indicates that mediation can be set early in the case, even before completion of formal discovery, and result in the same settlement rates as reached when mediation is set after formal discovery or even close to trial."7

The use of Judicial Mediation is undoubtedly a great step forward for the business climate in West Virginia. ADR, and the BCD’s pursuit of efficient resolution of cases, is helpful in business litigation because complex issues and high-dollar amounts make the risk of an all-or-nothing decision from a judge or jury generally more onerous to the losing party’s continued business operation. Even if a party is fairly confident of its position, the risk associated with such a decision is a considerable liability for businesses. It is of more value to a business to resolve serious disputes in a cost-effective and expedited manner that poses minimal disruption to the business model. Further, expedited resolutions free corporate officers from time-consuming litigation support. Notably, the BCD’s process of judicial mediation allows for trained judges to act as mediators for complex cases without the parties paying for the cost of the judge’s time. For businesses, issues such as costs8, publicity, and continued business relationships are of greater weight in resolving cases than with other litigants. These conditions often create a better setting for successful mediation. Getting to mediation quickly, in conjunction with the prioritized status on the Court’s docket, allows the BCD to offer lower costs and quicker resolutions which are beneficial to continued business operations.

As many of us in the legal field know, mediation and other forms of ADR are an appropriate and often preferred way to resolve all types of cases. As noted by the Ohio Supreme Court’s guidelines on mediation, "A meaningful benefit which flows from the mediation process and is not quantifiable in dollars or time savings is simply that the individual parties are given an opportunity to tell their story to a representative of the court, and then may resolve their dispute to their satisfaction."9

These benefits make the continued use and expansion of Judicial Mediation in complex business litigation a positive step for improving the legal and business environment in West Virginia.

Christopher C. Wilkes is Chief Judge for West Virginia’s 23rd Judicial Circuit and Chairman of the West Virginia Business Court Division. He has been serving as a Circuit Judge since January 1, 1993 and is a member of the American College of Business Court Judges. He has completed various mediation training, including the W.Va. State Bar Basic Mediation Training, and acts as presiding and resolution judge in business court cases. The Author would like to express his appreciation to Kevin John Watson, Esq., who assisted in the preparation of this article.

1 Elliot C. Cowdin, Court of Arbitration, Argument in Favor of Proposed Amended Act, NY Times, Feb. 11, 1875; Benjamin F. Tennille, Lee Applebaum, & Anne Tucker Nees, Getting to Yes in Specialized Courts: The Unique Role of ADR in Business Court Cases, 11 Pepperdine Dispute Resol LJ 35, 40-41 (2010).

2Tennille, et. al., Getting to Yes in Specialized Courts, supra, at 37.

3See generally, David B. Lipsky & Ronald L. Seeber, The Appropriate Resolution of Corporate Disputes: A Report on the Growing Use of ADR by U.S. Corporations (Cornell/PERC Institute on Conflict Resolution 1998); “ADR and ‘The Vanishing Trial,'“ Disp. Resol. Mag., Summer 2004, at 7, 8.

4It is important to note that the Business Court Division is not the pioneer of this practice in West Virginia. The Mass Litigation Panel began using Judicial Mediation in 2009. The Business Court Division has merely expanded upon the successful experiences of the Mass Litigation Panel and brought this type of mediation to cases with smaller numbers of parties, but with complex issues including those which have high dollar amounts at issue.

5Edward Brunet, Judicial Mediation and Signaling, 3 Nev. L.J. 232, 239 (2003)

6For a good discussion of this dynamic, see, Eric D. Green, Re-Examining Mediator and Judicial Roles In Large, Complex Litigation: Lessons from Microsoft and Other Mega Cases, 86 B.U.L. Rev. 1171 (December, 2006).

7Beverly Draine Fowler, et. al., Planning Mediation Programs, A Deskbook for Common Pleas Judges, at 1-3 (2001), <www.supremecourt.ohio.gov/publications/pmd.pdf >. Tennille, et. al., Getting to Yes in Specialized Courts, supra, at 37.

8This is especially true because costs continue to rise, most significantly due to “the explosion of electronically stored information (ESI) and its impact on the expense of discovery.” Tennille, et. al., Getting to Yes in Specialized Courts, supra, at 105.

9Tennille, et. al., Getting to Yes in Specialized Courts, supra, at 60; Fowler, Planning Mediation Programs, supra, at 1-3.