Nice Win Today in Virginia on Motions Day – Using an Obscure Virginia Law

I had an interesting outcome today in Virginia at Frederick County Circuit Court. I’m representing the plaintiff in a residential construction dispute, and a few weeks ago, I mentioned to my client something that opposing counsel had written in a response to me—he stated that my client and I should have tried to resolve this through mediation rather than litigating. I told my client that this was nonsensical, because it was the defendant who had rejected all our early efforts to resolve the matter amicably without going to court and who had even offered to mediate but then backed out. But my client had an interesting response: he asked about getting a court offered mediation. I replied that the court had not offered us anything like this (because it hadn’t). But my client’s comment spurred me into researching the matter and seeing if there was some sort of mediation we could get from the court.

I learned that while Frederick County Circuit Court never offers mediation (unlike General District Court, which does offer mediation), some counties in Virginia, such as Fairfax, do often use mediation in Circuit Court. The way it works is, the parties submit a form CC1419, under the Judicial Settlement Conference Program and request a mediation by a retired Virginia judge who participates in the program-- and the court will pay for it. This is pursuant to Virginia Code 17.1-105. And of course getting one of these is a win-win. The parties can end their dispute early without going to trial, which saves them attorney’s fees. And the court can clear out its docket by sending cases to mediation. And a nice bonus for the parties is that they don’t have to pay for a mediation (which can cost 4 figures, cutting into the funds available for settlement in smaller matters).

At the time when I filed the motion, back in early January, defendant’s counsel was not at all receptive to mediation so my form CC1419 has some blanks (where it was supposed to have agreement from the opposing counsel and the name of the mediator) but I figured it couldn’t hurt to try, and so I submitted a praecipe to get it on the docket for the February motions day (today). Well, as I learned at court today, opposing counsel/defendant now is interested in mediating (perhaps my simultaneous motion for summary judgment helped get the ball rolling), and opposing counsel was happy that the court will be paying.

Funny thing is as the judge was granting it, he stated he had never approved one of these in his entire time as judge (to be fair, he is a young judge). But maybe this will become a commonplace filing in Frederick County/Winchester City court seeing as it benefits everyone. It is allowed under the Virginia code, so it’s interesting that it has not been used in Frederick County Circuit Court, despite their very active docket.