No. 17-0486 -        The West Virginia Investment Management Board v. The Variable
                     Annuity Life Insurance Company
                                                                           FILED
                                                                        June 5, 2018
                                                                          released at 3:00 p.m.
                                                                      EDYTHE NASH GAISER, CLERK

                                                                      SUPREME COURT OF APPEALS

                                                                           OF WEST VIRGINIA

Davis, J., concurring:

              In this proceeding, the Petitioners appealed the final decision of a Business

Court three-judge arbitration panel. The arbitration panel decision concluded that the

Respondent did not violate the terms of annuity contracts entered into between the parties.

The majority affirmed that decision in a well-reasoned opinion. I concur in the majority

decision. I have chosen to write separately to address two issues involving mediation and

arbitration in the Business Court.



              First, as pointed out in the majority opinion, the record in this case revealed that

the presiding judge acted as a resolution judge for mediation, and also as one of the three

members on the arbitration panel. Rule 29 of the Trial Court Rules recognizes two types of

judges: presiding judge and resolution judge. Rule 29 does not authorize a presiding judge

to act as a resolution judge in a case. Rule 29.07(a) authorizes the Business Court chair to

“enter an order assigning Presiding and Resolution Judges.” This rule also states that “[t]he

Division Chair may serve as a Presiding or Resolution Judge.” The presiding judge has the

task of conducting an actual trial of a case. This authority is set out under Rule 29.08(a-g).

In the definition of resolution judge provided under Rule 29.04(e), it states that the role of

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the resolution judge is “to mediate, arbitrate, or provide any other form of dispute resolution

agreed to by the parties.”



              For reasons that are not clear from the record, the parties agreed to have the

presiding judge act as a resolution judge. This type of arrangement is not contemplated by

the Trial Court Rules. In fact, under the definition of resolution judge provided by Rule

29.04(e), it clearly states that “[t]o protect confidentiality of the mediation process,

communication between the presiding judge and resolution judge regarding the mediation

during or after the process shall be limited to procedural status or other matters agreed to by

the parties.” This language unquestionably implies that the positions of presiding judge and

resolution judge should not be filled by the same person in the same case. Consequently, I

believe it was a serious procedural error for the presiding judge in this matter to also serve

as a resolution judge. However, this procedural error was waived by the parties through their

acquiescence in the arrangement. The decisions of this Court are quite clear in holding that

“[a] litigant may not silently acquiesce to an alleged error, or actively contribute to such

error, and then raise that error as a reason for reversal on appeal.” Syl. pt. 1, Maples v.

W. Virginia Dep’t of Commerce, Div. of Parks & Recreation, 197 W. Va. 318, 475 S.E.2d

410 (1996). See Syl. pt. 2, Hopkins v. DC Chapman Ventures, Inc., 228 W. Va. 213, 719

S.E.2d 381 (2011). Further, “when there has been such a knowing waiver, there is no error

and the inquiry as to the effect of the deviation from a rule of law need not be determined.”


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State v. Miller, 194 W. Va. 3, 18, 459 S.E.2d 114, 129 (1995). Finally, “[w]hen a right is

waived, it is not reviewable even for plain error.” State v. Crabtree, 198 W. Va. 620, 631,

482 S.E.2d 605, 616 (1996). Insofar as the Petitioners in this case agreed to have the

presiding judge also fill the role of a resolution judge, they cannot complain of the error in

this arrangement.



              A second issue that the Petitioners waived is whether a resolution judge can

act as both a mediator and an arbitrator in the same case. Rule 29 does not expressly address

this issue. However, Rule 29.08(h) does appear to implicitly allow this arrangement. This

provision states that “[t]he Resolution Judge is authorized to schedule and conduct mediation

of the case or any Alternative Dispute Resolution as agreed to by the parties and the

Resolution Judge in an attempt to resolve the case in an expedient and efficient manner.”

This provision allows the parties and the resolution judge to agree upon conducting any type

of alternative dispute resolution.



              The issue of a judge serving as both a mediator and an arbitrator in the same

case was addressed in In re Cartwright, 104 S.W.3d 706 (Tex. App. 2003). The decision in

that case involved a post-divorce property claim that was filed by the former wife. The trial

court appointed another trial judge to act as arbitrator to resolve the claim, as required by the

divorce decree. The former husband filed a motion objecting to the person named as


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arbitrator, because she had served as a mediator over a child custody issue during the divorce

proceeding. The trial judge denied the motion. The former husband filed a writ of

prohibition seeking to preclude enforcement of the trial court’s order. The appellate court

granted the writ of prohibition for the following reasons:

              [A] mediator is in the position of receiving the parties’
              confidential information, which may not be revealed to the court
              or to any other person. If the mediator is later appointed to be
              the arbitrator between the same parties, he or she is likely to be
              in the possession of information that either or both of those
              parties would not have chosen to reveal to an arbitrator.

              . . . The mediation process encourages candid disclosures,
              including disclosures of confidential information, to a mediator.
              It is the potential for the use of that confidential information that
              creates the problem when the mediator, over the objection of
              one of the parties, becomes the arbitrator of the same or a related
              dispute. Just as it would be improper for a mediator to disclose
              any confidential information to another arbitrator of the parties’
              dispute, it is also improper for the mediator to act as the
              arbitrator in the same or a related dispute without the express
              consent of the parties.

Cartwright, 104 S.W.3d at 714 (emphasis added). It should be understood that the decision

in Cartwright recognized that parties may consent to having the same person act as mediator

and arbitrator of a dispute. This is the position taken by other courts that have addressed the

issue. See Panama Canal Comm'n v. Fed. Labor Relations Auth., 867 F.2d 905, 906 (5th

Cir. 1989) (“[T]he panel appointed one of its members, Mr. Robert G. Howlett (Howlett) to

serve as arbitrator-mediator. Implicit in the appointment was Howlett’s authority to mediate

the dispute and issue a binding decision as an arbitrator of any unresolved issues.”); U.S. ex


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rel. TGK Enters., Inc. v. Clayco, Inc., 978 F. Supp. 2d 540, 547 (E.D.N.C. 2013) (“[T]he

possibility of a dual role for a mediator/arbitrator is expressly contemplated by the American

Arbitration Association Construction Industry Arbitration Rules, which allow a mediator to

be appointed as arbitrator when requested by all parties.”); Soc’y of Lloyd's v. Moore, No.

1:06-CV-286, 2006 WL 3167735, at *1 (S.D. Ohio Nov. 1, 2006) ([“T]he parties agreed to

submit the remaining matters to arbitration and mediation. . . . The parties chose a single

panelist, Lawrence A. Glassmann, to arbitrate and mediate the dispute.”); U.S. Steel Mining

Co. v. Wilson Downhole Servs., No. 2:00CV1758, 2006 WL 2869535, at *1 (W.D. Pa. Oct.

5, 2006) (“The parties agreed that Harry L. Griffin, Jr., would serve as both mediator and

arbitrator with regard to their dispute.”); Votre v. Maisano-Votre, No. FA124017418S, 2015

WL 2473188, at *1 (Conn. Super. Ct. May 4, 2015) (“[T]he parties agree to use a ‘med/arb

format.’ Pursuant to this format, the parties would first attempt to mediate their dispute with

the arbitrator acting as a mediator, but if they were unable to resolve these issues, the

arbitrator would then immediately commence a binding arbitration hearing concerning all

unresolved issues and would not be disqualified by her participation in the mediation.”);

Town Of Clinton v. Geological Servs. Corp., No. 04-0462A, 2006 WL 3246464, at *1 (Mass.

Super. Nov. 8, 2006) (“This agreement provided for a form of ADR known as “med-arb” in

which a neutral, in this case Philip Bonanno, is engaged to serve initially as a mediator and

then, if the dispute is not resolved by that process, as an arbitrator.”).




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              As previously noted, the parties agreed to having the mediator serve on the

arbitration panel. The record also indicates that the parties were told prior to the mediation

that they should not disclose anything during that proceeding which they did not want the

mediator to know during the arbitration proceeding. Under these facts, the Petitioners again

waived any alleged procedural error.



                                                          In view of the foregoing, I concur.




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