Rule 40.Procedure following receipt of abbreviated premediation screening report
Current through December 29, 2025 · Last verified July 8, 2026
In one sentenceRule 40 sets what happens once the screening report arrives — a detailed mediation assignment order for parties cleared to mediate, and a scheduling order for those screened out.
(a)Parties assigned to mediation. — Within five days of receiving the abbreviated premediation screening report the court shall enter an order assigning a mediator to parties recommended for mediation. The assignment order shall (1) set the mediation fees in accord with the approved sliding scale; (2) require the mediator to contact the parties and arrange for mediation to begin by a date certain; (3) require that parties subject to court-ordered mediation discuss only matters relating to the development of a parenting plan; (4) set the next hearing date; (5) set the date all mediation related to the development of a parenting plan shall be completed the date should be within 45 days of the assignment order or before the next hearing date, whichever is sooner;(6) direct that each party be provided a copy of the approved mediation process document; and (7) notify the parties they are required to read that document or have it read to them, sign the acknowledgment, and bring the acknowledged document to the first mediation session. The assignment order shall not order the parties to discuss matters related to distribution of property, spousal support, child support (other than the effect of the parenting plan on the choice of child support formula) or any other financial matters.
(b)Subsequent mediation for parties assigned to mediation. — Once a parenting plan or a partial parenting plan has been presented to the court, or the court-appointed mediator notifies the court that the parties have failed through mediation to develop a parenting plan, the parties may, of their own accord, attend subsequent mediation sessions related to the distribution of property, spousal support, child support or other financial matters. The parties shall select their own mediator. That mediator shall not be subject to the Supreme Court's approved sliding fee scale for mediators.
(c)Parties screened out of mediation. — If the abbreviated premediation screening report reveals the existence of any of the elements listed in W. Va. Code, § 48-9-202(b), and/or recommends that the screened parties should not be required to mediate, the court shall dispense with mediation; but as provided in section 202(b), the court may consider alternatives which may aid the parties in establishing a parenting plan. The court shall not order the parties to participate in any alternative which is not conveniently available and affordable to the parties. If the court orders the parties' participation in any such alternative it shall follow the premediation and mediation procedures and all time limits shall apply. If the court dispenses with mediation, within five days a scheduling order shall be entered and sent to the parties informing the parties that they have been screened out of mediation, and setting a date certain for the next hearing.
End
Amendment History
[Amended by order adopted November 27, 2001, effective January 1, 2002; and by order entered and effective December 1, 2005; and by order adopted May 22, 2007, effective July 1, 2007.]
Plain-English Summary
Within five days of receiving the abbreviated report, the court enters an order assigning a mediator to parties recommended for mediation. That order has seven required contents: it sets fees on the approved sliding scale; requires the mediator to contact the parties and start mediation by a date certain; confines court-ordered discussion to developing a parenting plan; sets the next hearing date; sets the completion date for parenting-plan mediation, which should be within 45 days of the assignment order or before the next hearing, whichever is sooner; directs that each party get a copy of the approved mediation process document; and notifies them they must read it or have it read to them, sign the acknowledgment, and bring it to the first session.
The order must not send the parties to discuss property distribution, spousal support, child support — beyond how the parenting plan affects the choice of support formula — or any other financial matter.
Financial mediation is still available, just not by order. Once a parenting plan or partial plan has been presented, or the mediator tells the court the parties failed to develop one, the parties may of their own accord attend further sessions on property, spousal support, child support or other financial matters. They pick their own mediator, who is not bound by the approved sliding fee scale.
Where the report shows a statutory element is present, or recommends against mediation, the court dispenses with it — though it may consider alternatives that could help the parties reach a parenting plan, provided any alternative it orders is conveniently available and affordable to them. If it orders one, the premediation and mediation procedures and all time limits apply. Dispensing with mediation triggers a scheduling order within five days, telling the parties they were screened out and setting a date certain for the next hearing.
Frequently Asked Questions
How quickly is a mediator assigned?
Within five days of the court receiving the abbreviated premediation screening report, for parties recommended for mediation.
What may court-ordered mediation cover?
Only matters relating to the development of a parenting plan. The assignment order must not direct the parties to discuss property distribution, spousal support, child support (beyond the parenting plan's effect on the choice of support formula), or other financial matters.
When must parenting-plan mediation be finished?
Within 45 days of the assignment order or before the next hearing date, whichever is sooner.
Can the parties mediate financial issues?
Yes, of their own accord, once a parenting plan or partial plan has been presented or the mediator reports that the parties failed to develop one. They select their own mediator, who is not subject to the approved sliding fee scale.
What happens if the parties are screened out of mediation?
The court dispenses with mediation and, within five days, enters a scheduling order telling the parties they were screened out and setting a date certain for the next hearing. It may consider alternatives, but may not order one that is not conveniently available and affordable to the parties.
Source & verification. The rule text is reproduced verbatim from the
official West Virginia Rules of Practice and Procedure for Family Court (W. Va. R. Prac. & P. Fam. Ct. 40). Prescribed by the Supreme Court of Appeals of West Virginia (W. Va. Const. art. VIII, § 3). The plain-English summary is original and written by us. Last verified July 8, 2026. ·
Official source
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