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About Mediation Conferences
The Court schedules mediation conferences in selected cases. Experienced mediation attorneys conduct the conferences. The goal of mediation is to offer participants a confidential, risk-free opportunity to evaluate their case candidly with an experienced mediator who has reviewed the case file in detail, and to explore the possibility of resolving any disputed issues, whether substantive or procedural.
Case Selection
The Court selects cases for mediation conferences from cases originating in courts of appeals, mandatory appeals from administrative agencies, original actions, and other non-felony cases that the Court deems appropriate. The Court attempts to select cases for mediation that do not raise novel legal questions.
Conference Scheduling and Format
The Court attempts to schedule all conferences, by written notice from the Court, three to four weeks in advance of the conference date. The Court expects all parties and their representatives to attend their conference.
Most conferences begin with an inquiry into the circumstances that led to the filing of the case, and all parties are given an opportunity to state their views of the case. This discussion allows the mediator and the parties to understand the issues. The mediator will then ask the parties to suggest and evaluate options to resolve the case. Often, a candid examination of the probabilities for various possible outcomes helps parties reach consensus in settling the case.
Initial conferences typically last one to two hours, but sometimes may last longer. In some cases, parties generate proposals that require further review and, if this happens, further discussions may occur. The mediator may schedule follow-up telephone or in-person conferences, with or without clients, as necessary, to pursue fully all opportunities for negotiated settlements.
Briefing
The Court may suspend the briefing schedule until the parties complete negotiations, and the parties should review the Court's entry referring the case to mediation for any orders related to the due dates for briefs. The mediator has the authority to return cases to the regular docket and terminate stays if the parties are not making progress in resolving their case. Entries lifting stays, including entries returning cases to the regular docket, will set forth when briefs will be due. If no stay of the briefing schedule is in effect, or if a stay has been lifted, parties must file briefs and other documents when such filings are due, and the Court will dismiss cases for want of prosecution or take other action if the parties do not file briefs timely. See S. Ct. Prac. R. VI, §7. S. Ct. Prac. R. XIV, §§3(B) and 6(C) address extending the date for filing briefs.
What Participants Can Expect
Generally, participants can expect the mediator to lead a thoughtful and sometimes detailed exploration of the merits of the case. The extent of the preparation will vary with the amount of information available at the time of the conference. The mediator will have read the lower court's opinion (if one exists) and other pertinent documents and decisions. The mediator will inquire about settlement, and will help the parties discover common interests if they are not immediately evident. The mediator will make every effort to generate offers and counter-offers until the parties either settle the case or know they cannot settle it, and by how much they cannot settle it. Conferences are relatively informal. They are, however, official proceedings of the Court.
What the Court Expects
The Court attempts to identify lead counsel for all parties when scheduling conferences. If the Court misidentifies lead counsel, addressees should advise the Court of this mistake in advance of the conference. Lead counsel should also prepare their clients to speak for themselves at the conference.
In most cases, parties move from prior settlement positions more than they expect, requiring further consultation with clients. Thus, counsel should bring clients or the individual with full settlement authority to the conference. If the client is a public board or commission that will need to approve any settlement before implementation, the Court expects counsel to have received firm settlement positions, beyond an initial position, from such board or commission. The mediator and the parties expend considerable time and effort in preparing for and participating in these mediation conferences. Attitudes and perceptions of participants frequently change in the process. Experience shows that this time and effort is wasted, and opportunities for settlement can be lost, when clients or the individual with full settlement authority does not attend the conference.
Mandatory Participation - Voluntary Settlement
The Court expects the participation of all parties in scheduled conferences. Sometimes the parties cannot resolve the case without the involvement of individuals or groups who are not parties to the appeal. In that event, the Court may invite those additional persons or groups to participate. Even so, any mediated agreement affecting the interests of any party will take effect only with the voluntary consent of all parties.
Confidentiality
Under R.C. 2317.03 and S. Ct. Prac. R. XIV, §6(D), mediation communications are privileged and may not be admissible in evidence. Under R.C. 2710.07 and S. Ct. Prac. R. XIV, §6(D), mediation communications are confidential.