Arbitration – Private Dispute Resolution In Lieu Of Public Court Litigation 

Virginia Arbitration - Only By Agreement

Uniform Arbitration Act

Virginia has adopted the Uniform Arbitration Act, Virginia Code § 8.01-581.01, et seq.  The act provides the court with power to compel or stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate.  § 8.01-581.02.

"related to" vs "arising out of"

An arbitration clause covering claims ‘relating to’ a contract is broader than a clause covering claims ‘arising out of’ a contract. McMullin v. Union Land & Mgmt. Co., 242 Va. 337, 341, 410 S.E.2d 636, 639 (1991).  Contracts between parties are subject to basic rules of interpretation. Tm Delmarva Power v. Ncp of Va., 263 Va. 116, 119, 557 S.E.2d 199, 200 (2002). In the absence of a clear agreement showing that the parties intended that the arbitrator decide questions of arbitrability, that question is to be resolved by the court. Waterfront Marine Constr. v. N. End 49ers Sandbridge Bulkhead Grps. a, 251 Va. 417, 427, 468 S.E.2d 894, 899 (1996) A party cannot be compelled to submit to arbitration unless he has first agreed to arbitrate. By the same token, he cannot be compelled to arbitrate a question which, under his agreement, is not arbitrable. And the resisting party is entitled to a pre-submission judicial determination of arbitrability. Doyle & Russell, Inc. v. Roanoke Hosp. Asso., 213 Va. 489, 494, 193 S.E.2d 662, 666 (1973). Nevertheless, an “arbitration award ‘must be construed liberally so as to uphold it, if possible.’” Howerin Residential Sales Corp. v. Century Realty of Tidewater, Inc., 235 Va. 174, 179, 365 S.E.2d 767, 770 (1988), (quoting Sydnor Pump & Well Co. v. County Sch. Bd., 182 Va. 156, 167, 28 S.E.2d 33, 37 (1943)).

Powers of Arbitrator:

The act empowers arbitrators to do the following:

    1. issue subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence,
    2. to administer oaths, and
    3. to permit a deposition to be taken and used for a witness that cannot be subpoenaed or is unable to attend the hearing. § 8.01-581.06.

Axiom Mediation Group
105 S 1st Street, Suite A
Richmond, Virginia 23219


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Not all mediators are the same.

Axiom Mediation LogoHow do you find the best mediator in Virginia? It is unfortunate that some disputes fail to be resolved in mediation due not to the parties, but as a result of a bad mediator.  Mediator Tom Roberts has experience in mediation both as a mediator and also as an aggressive lawyer representing clients in mediation. Here’s a quick conversation with Mediator Tom Roberts.

Q.  Have you ever had a bad experience with a mediator?

A.   Unfortunately.  Three instances come to mind.  

The uncommitted mediator

First – the uncommitted mediator.  I encouraged one of my clients to participate in mediation. Unfortunately, the famed mediator was useless.  The mediator made no apparent effort to prepare for the mediation. The mediator failed to interact with the parties prior to the day of mediation.  The mediator failed to dig in with a commitment to seeking a resolution, but conveyed the notion that he might be missing his T-time for the day. His secretary would have been more skilled walking offers back and forth between the parties.  Unfortunately, the parties went on to litigate for years after.

The careless mediator

Second – the careless mediator resting on her laurels.  In another instance, we chose a very accomplished individual as the mediator.  The trouble, she failed to listen carefully and to communicate to the opposing party the offer with the precision given to her.  In this case the existence of various insurance policies available to compensate my client for losses sustained in a fire was an important factor for the opposing party to determine whether or not they should take a shaving on liabilities potentially owing by my client.  The final offer given to the mediator was not accurately communicated by her to the opposing party. She announced the case had settled. However if settled in the manner announced, it would have perpetrated a fraud. Correcting the error resulted in a less advantageous result for my client.

The unskilled "certified" mediator

Third – the unskilled “certified” mediator.  A mediator can hone their skills, but simply put not everybody can be an effective mediator.  In this case, the mediation was court ordered with a specified pair of mediators – simply put they were a disaster and complete waste of time.


Q.  What separates you from other mediators?

A.  Creativity and Determination.  

Fortunately, there are a number of good mediators  – generally, the effective mediators become known. With nearly 40 years of experience, I strive to approach every case with the determination and creativity to enable the parties to arrive at a resolution.  I enjoy meeting people from all walks of life, and love solving problems.

Q.  What can you do if a mediator misbehaves?

A.  There are remedies.

A mediator may be liable for misleading a party, for breaching confidentiality.  However, it is not very common for mediators to be held legally liable. Be careful not to confuse a mediator’s exposing to each party their own weaknesses in their positions as a lack of neutrality.  Seeking mediation services from an experienced mediator with a good reputation is your best protection against mediator misconduct or malfeasance.

Axiom Mediation Group
105 S 1st Street, Suite A
Richmond, Virginia 23219