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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, but does put a process together to help the parties clarify the case issues, identify their interests, and generate options for settlement.
Why mediate cases in the Court of Appeals? The appellate process can be expensive and time consuming. 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 20 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 and self-represented parties will be sent written notice that a mediation conference has been scheduled, which will contain the date, time, and location of the mediation.
Where are mediation conferences conducted? The Court will attempt to schedule mediation cases in the county in which the appeal originates. The Mediator, 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 Mediator directly or by filing a motion with the Court. After that time, extensions may be granted upon the recommendation of the Mediator 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 Mediator.
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 20 of the Ninth District Court of Appeals.
Are parties required to attend the mediation conference? Yes. Unless excused in advance by the Mediator, 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 Mediator 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 Mediator 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 Mediator.
How long will the mediation conference last? You should set aside at least two hours for the mediation conference. The Mediator 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 the conference will be conducted in a less formal manner. Mediation conferences are attended by the Mediator, the parties, and the attorneys for the parties, if they are represented. While the legal and factual issues of the case will likely be discussed, no judges are present and the Mediator cannot make a decision on any of these issues. In addition to discussing the legal and factual issues, the parties should come prepared to discuss the procedural aspects of the appeal and the anticipated assignments of error. The mediation conference will also actively explore resolution of the case by discussing the interests of the parties, the costs and benefits of the appellate process, and the benefits of resolving the dispute by agreement. The parties will be asked to work to understand other points of view and encouraged to think creatively.
What is the role of the Mediator during the mediation conference? The Mediator is not an advocate for any party, but is responsible for providing an opportunity for a productive mediation conference. The Mediator will encourage neutral analysis of your dispute, create a process to fully consider your interests, and will assist you in developing possible outcomes for resolution.
Are Mediation Conferences Confidential and Privileged? 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 Mediator will maintain the confidences of the parties. Mediation communications are also privileged and will not be communicated with the Court pursuant to the provisions of the Uniform Mediation Act (UMA), Ohio Revised Code Chapter 2710. In most cases, this means the mediator, the parties, and other mediation participants cannot testify about mediation communications that occur during the mediation conference.
Will the judges of the Court of Appeals know what happens during the mediation conference? No. The Mediator is bound by the UMA’s mediation privilege and can make no recommendations to the Court about the outcome of the appeal. If the parties are unable to reach an agreement, 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. |