Mediation in the Ninth District Court of Appeals.
What is mediation?
Mediation is a process in which a neutral mediator meets with the parties to a case to discuss resolving the dispute by agreement. The mediator does not make a decision regarding the outcome of the case and is not an advocate for any party during the mediation.
Why mediate cases in the Court of Appeals?
While settlement discussions are common in the trial court, those discussions often end once a case has been appealed. Appellate mediation provides a window of opportunity for resolution before the parties have invested time and resources in the appeal.
What cases are eligible for mediation?
Local Rule 16 of the Ninth District Court of Appeals provides that all civil and administrative appeals are eligible for mediation. Original actions may be scheduled for a mediation conference when appropriate.
How will I know whether my case has been selected for mediation?
Counsel will receive written notice that a mediation conference has been scheduled, and will be advised of the date, time, and location. Parties who are not represented by an attorney will be notified directly.
Where are mediation conferences conducted?
The Court will attempt to schedule mediation cases in the county in which the appeal originates. The Mediation Attorney, however, has the discretion to schedule a mediation conference in another county within the Ninth District or by telephone.
Does mediation alter the timelines for filing the record or the briefs?
No. Notice that an appeal has been selected for mediation does not automatically extend these timelines. Before the mediation conference, parties may request an extension by calling the Mediation Attorney directly or by filing a motion with the Court. After that time, extensions may be granted upon the recommendation of the Mediation Attorney if it appears that the parties are participating in the mediation process in good faith.
Is participation in a mediation conference optional?
No. Participation is mandatory, whether the conference is scheduled by the Court or at the request of a party. If you have concerns regarding participation in the mediation conference, you may contact the Mediation Attorney.
Must each party’s lead counsel attend the mediation conference?
Yes. Every party who is represented by counsel must be represented at the mediation conference by an attorney who is not only conversant with the case, but is the attorney on whose advice the party relies. If more than one attorney meets these criteria, either may represent the party at the mediation conference. Please note that failure to comply may result in the imposition of sanctions as provided in Local Rule 16 of the Ninth District Court of Appeals.
Are parties required to attend the mediation conference?
Yes. Unless excused in advance by the Mediation Attorney, clients must attend the mediation conference with counsel. Any party who is excused from attending the mediation conference in person must be available by telephone.
Do I have to have an attorney to participate in mediation?
No. You are strongly encouraged to seek the advice of an attorney, but it is not a prerequisite to participating in the mediation conference. Please remember, however, that the Mediation Attorney will not represent you during the mediation conference and cannot provide you with legal advice.
What if I have an unavoidable conflict with the date and time of the mediation conference?
If you need to reschedule, contact the Mediation Attorney at (330) 643-2250. Alternative dates and times will be provided to you. Attorneys who request that a mediation conference be rescheduled are responsible for contacting all other counsel on the case to select an alternative date. Once a date has been selected, the rescheduling attorney must confirm the date and time with the Mediation Attorney.
How long will the mediation conference last?
You should set aside at least two hours for the mediation conference. The Mediation Attorney may extend the conference beyond two hours if necessary or may work with the parties to schedule additional conferences as needed.
What happens during the mediation conference?
The mediation conference is an official proceeding of the Ninth District Court of Appeals, but you can expect the conference to be conducted in a less formal manner. The mediation conference will be attended by the Mediation Attorney, the parties, and their attorneys if they are represented. The mediation conference is not an opportunity to argue your case to the Court, and there will be no judges present. You can expect that the conference may begin with a discussion of the procedural aspects of the appeal. Once procedural issues have been addressed, the primary substantive issues and the anticipated assignments of error will be discussed. The mediation conference will then focus on actively exploring resolution of the case through the mediation process. The Mediation Attorney may meet separately with the parties and their respective attorneys. The discussion will focus on the possible outcomes of the appeal and the costs involved in pursuing an appeal to decision; the interests and motivations of all parties; and benefits of resolution of the dispute. You will be encouraged to think creatively.
What is the role of the Mediation Attorney during the mediation conference?
The Mediation Attorney is not an advocate for any party during the mediation conference. She will not make a decision in your case or make any recommendations to the judges of the Court of Appeals. The Mediation Attorney will encourage neutral analysis of your dispute and may assist in the generation of possible outcomes for resolution. Although active in the discussions, the Mediation Attorney will remain impartial. The Mediation Attorney will maintain the confidences of the parties and cannot communicate with the Court about what is discussed during the mediation conference.
Are Mediation Conferences Confidential?
Mediation in the Ninth District Court of Appeals is subject to the provisions of the Uniform Mediation Act (UMA), Ohio Revised Code Chapter 2710. Communications between the parties in the course of mediation are confidential to the extent that the parties agree. You will be given an opportunity to sign a confidentiality agreement at the beginning of the mediation conference, but you are encouraged to consider confidentiality in advance. The UMA also limits the ability of parties and other mediation participants to testify about conversations that occur during the mediation conference.
Will the judges of the Court of Appeals know what happens during the mediation conference?
No. The Mediation Attorney cannot reveal any communications made in the course of mediation to the judges of the Court of Appeals and can make no recommendations to the Court about the outcome of the appeal. If the parties are unable to reach a resolution, the appeal is not affected.
How should I prepare for the mediation conference?
Counsel should consult with their clients before the mediation conference to obtain settlement authority and should be thoroughly familiar with the facts and legal issues on appeal and be prepared to discuss them during the mediation conference. This includes not only the substantive issues in the case, but matters of appellate procedure that bear on the possible outcome of the appeal, such as the nature of the record on appeal, the standard of review, and preservation of error in the trial court. Counsel are encouraged to evaluate in advance what the consequences of a successful appeal will be for their client(s) and to discuss the advantages and disadvantages of pursing the appeal to conclusion with the client(s) with respect to time and expense.