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Pilot Projects in Appellate Mediation Taking Shape

Tuesday, October 23, 2018   (0 Comments)
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By John O’Herron

This past summer, Chief Justice Lemons announced mediation pilot projects in both the Supreme Court of Virginia and the Court of Appeals of Virginia. Both pilot projects will begin Jan. 1, 2019, and will run for two years. The primary purpose of the pilot projects is simple: to give parties the ability to create their own solution to a dispute on appeal.

A few features of the pilot projects are worth noting:

  • They are entirely voluntary. As Chief Justice Lemons said in June, “We are simply offering a creative alternative to those who want it.”
  • They are only for certain cases. In the Supreme Court, mediation will be available after a petition for appeal is granted, and original jurisdiction cases are not eligible. In the Court of Appeals, only domestic relations cases involving equitable distribution and attorneys’ fees are eligible.

Another feature of the pilot program is one happening imminently: the program will require a new level of certification for appellate mediators. Once certified, these appellate mediators will be included on a list sent by the clerks of the Supreme Court of Virginia and the Court of Appeals of Virginia during the pilot project. According to the Report of the Special Committee to Study Appellate Mediation in Virginia, to be certified, one must:

  • Be a member in good standing with the Virginia State Bar;
  • Certified as a mediator in Virginia (or complete the 20-hour basic mediation course);
  • One must also
    • have served on the Supreme Court or the Court of Appeals; or
    • complete a two-hour course on appellate litigation, and have
      • served as a jurist on another court in Virginia; or
      • litigated at least 10 cases within the past 10 years in the appellate courts of Virginia, the U.S. Court of Appeals for the Fourth Circuit and/or the United States Supreme Court; or
      • (for the Court of Appeals pilot project) be certified as a Family Circuit Court mediator.

To that end, on Nov. 14-16, 2018, the Joint ADR Committee will be holding a training program for appellate mediators. First, beginning on Nov. 14 and concluding on Nov. 16, the basic 20-hour course will be provided. On the afternoon of Nov. 16, the Joint ADR Committee will offer a two-hour in-depth course on appellate litigation as a continuation of the appellate mediation training.

To register for this upcoming training, please visit the VBA registration pages linked above.

To see the report of the Special Committee to Study Appellate Mediation in Virginia, whose recommendations were approved by the Supreme Court, click here.


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