Rule 53.4.Procedures for mandatory mediation of health care claims

Rule 53.4 governs superior court procedure for claims subject to mandatory mediation under RCW 7.70.100 and .110 — Washington's medical malpractice mediation statutes. Parties may instead agree in writing on a different mediation procedure and choice of mediator, an option section (b) preserves. Absent good cause for a different schedule, mediation under RCW 7.70.100 must begin no later than 30 days before the trial date, while mediation under RCW 7.70.110 must begin no later than 90 days after the mediator is selected. Any party may petition the court that mediation is not appropriate, in which case the court or the mediator may excuse the claim from mediation. Where no mediator has been agreed upon or a waiver obtained, the court designates one from the register described in section (g) at a party's request, generally no sooner than 180 days before trial, or, for RCW 7.70.100 mediation, no sooner than 180 days after the good faith request for mediation.

Section (f) lays out the mediation procedure in detail. The plaintiff arranges an initial conference call with the mediator and all counsel to work out logistics. Unless the mediator directs otherwise, the parties give the mediator copies of the relevant pleadings, the mediator sets a time and place for the conference with at least 14 days' written notice, and each party delivers a confidential memorandum of no more than 10 pages on liability and damages at least seven days before the conference, along with a confidential statement of its current offer or demand. The attorney primarily responsible for each party's case must personally attend, prepared to discuss liability, damages, and settlement in detail and good faith, and the parties and their insurers (including self-insurers) must attend in person, except that a defendant whose insurer has full settlement authority need not attend, and the mediator may excuse attendance in exceptional cases in favor of telephone availability. Willful or negligent failure to attend or comply is reported to the court by the mediator and may draw sanctions.

The mediation conference itself is privileged: nothing said or done there can be reported, recorded, used as evidence or for impeachment, disclosed to the court or jury, or treated as an admission, and no party is bound by anything short of a written, signed settlement. The mediator has no obligation to make written recommendations, but may deliver a confidential settlement recommendation memorandum if every party agrees, and that memorandum is never filed with the clerk or shared with the court or jury. Within 10 days after mediation concludes, or after the mediator determines the claim is unsuited to mediation, the parties certify to the court in writing how mediation proceeded and whether the rule's requirements were met. Section (g) requires the court to maintain a register of volunteer attorney mediators drawn from members in good standing of the Washington State Bar Association, and sets qualifications: at least five years of bar membership, experience or expertise in litigating health-care injury claims, and either 6 hours of continuing legal education in mediator training plus service as mediator in at least 10 cases (three of them medical malpractice), or status as a retired judge with the relevant experience who also meets the CLE-and-caseload requirement.