By: Robin Jean Davis, Justice
Supreme Court of Appeals of West Virginia

The Court is pleased to announce that an independent review of the Court’s Workers’ Compensation mediation program found the program to be a success. The independent evaluation, which was sponsored, in part, by a grant from the State Justice Institute, was conducted by Roger A. Hanson, Ph.D., a nationally known consultant on appellate courts. Dr. Hanson’s review of the Court’s program was conducted through a survey of lawyers and litigants who participated in mediation during the program’s first year.

The Court’s Workers’ Compensation mediation program has its genesis in the Court’s concern about the long delays at the Court, which were caused by the heavy Workers’ Compensation caseload, which had steadily increased for several years. By 1998, Workers’ Compensation cases (2067 petitions) constituted about two-thirds of the Court’s total docket (3415 petitions). I, along with the other members of the Court, was increasingly concerned about the human consequences of such a long delay. Many Workers’ Compensation litigants waited over a year before the Court determined whether to grant a full review. If a full review was granted, another seven months usually passed before an order was entered.

As a former practicing lawyer, I was also concerned about the adequacy of review, especially for cases in which a full review was denied. The human and economic consequences of these cases called for a new and innovative approach.

In 1998, the Court responded to these concerns by instituting a Workers’ Compensation mediation program. The mediation, which occurs after the filing of a petition, is designed to reduce the time and litigation costs by encouraging litigants, with the help of a neutral third person, to resolve their dispute without a Court order. The mediation program was designed and overseen by a committee, consisting of leaders in both mediation and Workers’ Compensation. The Court would like publicly to acknowledge and thank the committee members who generously volunteered their time and effort for the success of the mediation program. The Court would also like publicly to acknowledge and thank the Office of Judges and the State Bar for their support in training the program’s mediators.

Experienced mediators, along with court personnel, began mediating cases in September 1998. During the program’s first year (9/98 through 6/99), 919 cases were referred to mediation. Of the 862 cases mediated by June 30, 1999, about 370 settled with 187 remaining in negotiation after an initial session. Of the cases resolved (675) during the program’s first year, 55% settled and 45% did not settle. Many of the cases which remained in negotiation after an initial session, did not settle. So, the overall settlement rate for the cases mediated in the program’s first year is about 47%.

Initially, the types of cases selected for mandatory mediation included: Permanent Total Disability- -Onset Date; Temporary Total Disability and Permanent Partial Disability. Currently because of limited Court resources, the program is emphasizing mediation of Permanent Total Disability- -Onset Date cases, with a limited number of additional cases.

The program’s mediators facilitate negotiation by conducting structured sessions with counsel, who either have their clients attend the sessions or have their clients’ authority to settle. These mediations allow the litigants and the Division, a party under the 1999 Code revisions, an opportunity to settle. In most cases, the Court’s mediation program provides the first settlement opportunity. I am pleased to report that because of the Court’s program, both the Division and the Office of Judges are in the process of incorporating earlier opportunities for settlement in the litigation process. In December 1999, the Court responded favorably to the committee’s recommendation to continue the program.

In July 1998, Dr. Hanson reported that initial results of his independent evaluation of the mediation program were positive. After completing his statistical analysis, Dr. Hanson reported that the mediation program was a success. Dr. Hanson’s evaluation was based on a post mediation survey of participants during the program’s first year. The majority (73%) of participants were "very satisfied" or "satisfied" with the program. Less than 2% were "dissatisfied" and wanted the program terminated. These results are more positive that those of Ohio’s mediation program. This was surprising because unlike Ohio, West Virginia had no history of negotiated settlements in Workers’ Compensation cases.

According to Dr. Hanson, the success of West Virginia’s mediation program is based on both the mediators’ encouragement of communication and negotiation to foster resolution of difficult issues and the attorneys’ good faith efforts at negotiation. Dr. Hanson said:

Credit for the program is due to many collaborating segments of the West Virginia legal community. The program’s ultimate success lay with the conscientious mediators and the many attorneys throughout the State who approached mediation with a good faith bargaining orientation. The combined cooperation of the oversight committee, the Bar, Workers’ Compensation Division, Office of Judges and the Court paved the way for a substantial improvement in the appellate process. I hope that this positive effort continues to be a hallmark of the West Virginia legal culture.

In conclusion, I am pleased to report that the Court’s mediation program is a success. However, the reasons for that success - cooperation, good faith efforts, a willingness to try innovative approaches and a dedication to service - are even more encouraging because these are the attributes that will lead to other successes for our State.

1Dr. Hanson, a University of Minnesota graduate who was formerly with the National Center for State Courts, is a consultant with thirty years of experience. In addition to mediation, his current areas of study include criminal defense of the poor, sentencing, prisoner litigation, and civil justice reform for more effective and efficient administration of court systems. In 2000, he will be a visiting lecturer at Oxford University, England. His e-mail address is RWC3cgateway.net.

2 I had the honor of serving on the Workers’ Compensation Mediation Committee with the following: Priscilla Gay, Chair; William F. Vieweg, Commissioner, Bureau of Employment Programs; Judge Robert Smith, Chief Administrative Law Judge, Workers’ Compensation Office of Judges; Timothy Leach, Chair of the Workers’ Compensation State Bar Committee; William Brotherton, III, Workers’ Compensation State Bar Committee: James Holland, Alternative Dispute Resolution State Bar Committee; Rebecca Weinstein, Alternative Dispute Resolution State Bar Committee; Professors Emily Spieler and Thomas Patrick, West Virginia College of Law; Thomas Tinder, Executive Director of West Virginia State Bar; L. Eugene Dickinson, Director Legal Services, Bureau of Employment Programs

3 For a discussion of a previous Workers’ Compensation mediation program by an intermediate court in Ohio, see, Roger A. Hanson, The Use of Mediation to Resolve Workers’ Compensation Cases: A Report to the Tenth Appellate District of the Court of Appeals of Ohio, Williamsburg: National Center for State Courts, 1997. The Ohio project was also supported by a grant from the State Justice Institute.

4 Dr. Hanson’s complete report is being distributed to all the Chief Justices in the nation in January 2000 and will be available on the Court’s web site (ww.state.wv.us/wvsca). The results of Dr. Hanson’s report will also be featured in several national publications.