Is Mandatory Pre-Suit Mediation on the Way in West Virginia?

Designated as Senate Bill 35, Senator Michael Woelfel (D-Cabell) has introduced legislation that, if enacted, would require a potential plaintiff to make a demand for pre-suit mediation before instituting any civil action in West Virginia circuit court. Senator Woelfel introduced an identical bill near the end of the 2017 legislative session, but it did not advance past its judiciary committee referral.

Aimed at reducing the civil litigation burden on the court system and saving parties from avoidable litigation costs, the proposal would require any individual seeking a civil remedy in court to serve a mediation demand by certified mail. Once served, the potential defendant must respond within twenty days. If the potential defendant either fails to respond or refuses to mediate, or if mediation fails to resolve the matter, the plaintiff may proceed with their suit. In addition, the making of such a demand by a plaintiff will toll the statute of limitations on the matter at issue until fifteen days after the conclusion of the mediation, or, if the potential defendant does not respond, fifteen days after the expiration of the response time. Excluded from this requirement are any suits against the state which are subject to pre-suit notice requirements, medical malpractice claims, class action law suits, and disputes subject to an arbitration provision.

West Virginia would not be the first state to experiment with mandatory pre-suit mediation. In 2008, the University of Florida Health Systems instituted a program which mandated pre-suit mediation for medical malpractice claims. While a broader mediation requirement may see different impacts, Florida saw the average litigation costs and time to resolution decline significantly for those mediated compared to those litigated, while the average post-cost settlement payment to claimants increased significantly, according to one study. Specifically, average per-suit legal expenditures for a litigated malpractice claim in Florida were $81,880, while for a mediated claim under the UF program were $8,310, while the $152,250 average post-cost settlement for a mediated claim was significantly higher than the $97,500 average for a litigated claim. Based on those data points, the conclusion could be drawn that some defendants or insurers may be willing to pay more for an injury at the pre-suit stage to avoid litigation and its associated expenses and risks, and at which point they have next to no sunk costs.

The bill, introduced on January 10, 2018, is currently pending in the Senate Judiciary Committee. A copy of the bill, as well as tracking information, may be found at http://www.wvlegislature.gov/Bill_Status/Bills_history.cfm?input=35&year=2018&sessiontype=RS&btype=bill