Seventh District Mediation--F.A.Q.

 

Pursuant to App.R. 20 and Loc.R. VIII, the Seventh District Court of Appeals conducts appellate mediation conferences to encourage and facilitate the settlement and resolution of civil appeals.  Mediation may be requested by any party, but final selection is made by the court mediator.  Mediation conferences are scheduled by the Court through the mediator.  The following are some commonly asked questions presented for your assistance.

 

• What is appellate 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 is not an advocate for either party and does not make a decision regarding the outcome of the appeal.  The mediator helps the parties to identify and resolve the issues on appeal.  The mediator conducts a neutral analysis of the case and the issues in order to help the parties generate possible outcomes for resolution.

 

• What cases are eligible for Loc.R. VIII appellate mediation conferences?  

Loc.R. VIII provides that all civil actions and original actions (such as writ of mandamus or writ of prohibition) are eligible for a mediation; however, only cases selected by the mediator are set for conference.

 

• How are counsel advised that their appeal has been selected for a mediation conference?  

Counsel receive a Notice of Loc.R. VIII Conference advising them of the date and time of the conference, whether it is to be held by telephone or in person, and how the parties and attorneys are to prepare.

 

• When will mediation occur? 

Cases are generally screened for mediation immediately after the notice of appeal is filed, and if selected, a notice of prehearing conference will be sent to the parties.  The hearing will be scheduled with at least ten (10) days notice from when the hearing notice is mailed.

 

• Where will mediation occur? 

Mediation will usually occur in the mediation room of the Seventh District Court of Appeals Courthouse, 131 West Federal Street, Youngstown, Ohio 44503.  In some cases, telephone conferences can be arranged.

 

• Why are mediation conferences scheduled shortly after the notice of appeal is filed?  

Loc.R. VIII mediations are generally held shortly after the notice of appeal is filed so that resolution of the appeal or settlement of the case can be explored prior to the parties incurring further cost and expense on appeal.

 

• Are the Loc.R. VIII appellate mediation conferences conducted in person or by telephone?  

Loc.R. VIII conferences are typically held at the Courthouse in downtown Youngstown, Ohio.  However, mediation conferences may be conducted by telephone if one of the participants resides outside of the metropolitan area or if other factors dictate that a telephone conference would better facilitate mediation.  Experience shows that telephone mediation conferences have been equally effective at fostering resolution of appeals.  The telephone conferences are initiated by the Appellate Mediator.  It is important to note that telephone mediation conferences are afforded the same consideration as in-person mediation conferences.

 

• Are the times on appeal suspended upon notice of a Loc.R. VIII conference? 

No.  The times on appeal continue as usual including briefs.  However, a 21-day mediation extension will usually be granted by making a request directly to the mediator or by filing a motion with the Court.  Expedited appeals will generally not be given extensions even if selected for mediation.

 

• How will I know whether my case has been selected for mediation? 

Loc.R. VIII provides that the mediator will notify the parties that a prehearing conference or mediation conference has been scheduled.  If a party is represented by counsel, the mediator will send the notice to counsel.  If a party is unrepresented, the party will be notified directly.

 

• What if I have an unavoidable conflict with the scheduled date and time?  

If you need to reschedule because of a previously scheduled court appearance, planned vacation or unforeseen emergency, please call our court mediator attorney Aaron Hively at 330-746-5912.  Alternative dates and times will be provided to you.  It is the duty of the rescheduling attorney to contact all other counsel on the case to arrive at a mutually agreeable date and time and then to promptly notify the mediator of the rescheduled date and time.  Rescheduled cases are typically held within fourteen (14) days of the originally scheduled conference.

 

• Who conducts the Loc.R. VIII appellate mediation conferences?  

The Court’s mediator attorney Aaron Hively conducts the conference.

 

• Is participation in Loc.R. VIII mediation conferences optional?  

No, it is mandatory.  The parties are required to attend the mediation conference, but there is no requirement that settlement be reached.  If no settlement is reached, the appeal will continue.  Participation in a Loc.R. VIII appellate mediation conference is mandatory whether the appeal was scheduled by the Court or was initiated by the request of a party.  Sanctions may be imposed for failure to attend the prehearing conference.  However, in rare instances, parties may seek to opt-out of the mediation conference with the consent of the mediator upon good cause shown.

 

• 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 participation 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.

 

• Must each party’s lead attorney attend mediation?  

Yes.  Settlement is likely only if those most conversant with the case are present, including the attorneys most relied on by the parties.  If more than one attorney meets these criteria, either one may represent the client in the Loc.R. VIII mediation conference.  Pro se litigants are not required to obtain counsel for a mediation conference ("pro se" means a party is representing himself or herself without an attorney).

 

• Are the parties required to attend the mediation? 

The actual parties involved in the litigation are generally required to attend mediation.  If a party is not able to attend mediation in person or by phone, a representative with full settlement authority shall, at minimum, either attend the mediation or be available by telephone for the duration of the mediation to facilitate the settlement discussions.  Active participation of parties is generally conducive to the settlement discussions.

 

• May anyone else attend mediation? 

Yes.  Parties may bring a support person to mediation.  Although this is usually an attorney, if a party is not represented by counsel, the support person may be a family member, friend, or business advisor.  You must advise the mediator if a support person, other than an attorney, will be attending mediation.  The support person will be held to the privilege communication provisions of Ohio Revised Code Chapter 2710, and will be required to sign the mediation confidentiality agreement.

 

• How long do the mediation conferences last?  

On average, the mediation conferences typically last sixty minutes.  It is not unusual, however, for the mediation conferences to go beyond one (1) hour if progress toward settlement is being made, and the conference attorney will afford counsel and the parties as much time as necessary to accomplish the purposes of the mediation.

 

• What preparation is required of counsel? 

Each counsel is required to complete a confidential information form to the mediator.  This form is submitted only to the mediator and is not filed with court or delivered to the opposing party.  Counsel must also email an acknowledgement form to the mediator immediately after receipt of the notice of the conference.  Counsel are to consult with their clients prior to the Loc.R. VIII mediation and obtain the requisite settlement authority.  Counsel will be asked about the range of outcomes on appeal irrespective of the degree of probability of that outcome.  Counsel are to be prepared to fully explore in good faith all options, avenues, and possibilities which might lead to a mutually acceptable resolution of the case.  Counsel should also review their factual and legal positions prior to the mediation.

 

• What takes place at the Loc.R. VIII mediation conference?  

While Loc.R. VIII mediation conference procedures are official proceedings of the Court, they are conducted in a relatively informal manner.  Discussions are typically conversational rather than argumentative.  Initially, procedural issues and questions are addressed.  The primary substantive issues and anticipated assignments of error are then discussed in the context of appellate standards of review.  Thereafter, resolution is actively explored through the mediation process.  The mediation focuses on the possible outcomes on appeal; the risks and costs of further litigation; the key interests and leading motivations of the parties; and the potential benefits gained through resolution of the appeal or settlement of the entire case.  The mediator typically meets jointly with counsel and the parties and then meets separately in caucus with each side in his role as mediator.  He may shuttle between the parties and their counsel or meet with counsel only.  On appeal, it is generally the appellant’s responsibility to put forth the initial demand, offer, or proposal to settle the appeal.  Settlement demands, offers and proposals are thoroughly discussed at the conference.  Resolution may not be reached during the initial conference.  Following an initial conference, the mediator typically initiates further discussions by telephone, letter or e-mail or will schedule follow-up conferences or require ongoing status reports, if helpful.  Counsel will negotiate directly as well throughout the pendency of the appeal.  By the conclusion of the Loc.R. VIII mediation conference process, the parties will often have reached a resolution, or will have identified the remaining obstacles and areas of impasse preventing resolution on appeal.

 

• What is the role of the Mediator in the Loc.R. VIII appellate mediation process?  

At the start of the prehearing conference, the mediator will go over procedural questions and issues including potential jurisdictional problems, and then the anticipated assignments of error and primary legal issues are raised and discussed. The mediator may perform a variety of roles as may be conducive to the settlement process.  He may act as a facilitator, moderator or intermediator.  He may act as a sounding board or as a reality check or even cajole, test or challenge positions of counsel and the parties, typically in a private caucus, but sometimes jointly.  Typically, however, he will encourage active yet neutral analysis rather than arguments and accusations.  He will assist as needed in the generation of possible options for resolution.  As mediator, he will work closely, as needed, with counsel and the parties in facilitating impasse negotiations and encouraging collaborative problem-solving in the search for mutually agreeable terms. Throughout the appellate mediation conference proceedings, Mr. Hively, while active in the discussions and questioning, remains impartial, but may challenge, in his experience, tenuous, unreasonable or bad faith positions and proposals.

 

• Are Loc.R. VIII mediation communications privileged and confidential? 

Mostly Yes.  The Seventh District’s Loc.R. VIII(E) states that “[t]he privilege provisions of the Uniform Mediation Act, R.C. Chapter 2710, apply to all mediation conferences and communications.  Mediation communications shall be privileged and therefore shall not be disclosed by the conference attorney or by the parties and shall not be used by the parties when presenting or arguing the case.”  Privilege and confidentiality are distinct concepts.  Ohio Revised Code Chapter 2710 provides a privilege for mediation communications, meaning such communications cannot be disclosed in official court proceedings.  To retain confidentiality of mediation communications in all other contexts, the participants in mediation will normally enter into a confidentiality agreement, which will be provided at the prehearing conference.  The conference attorney will not report or communicate the substance of any settlement discussions or any mediation communications to this or any Court.  Counsel are encouraged to review the entire Uniform Mediation Act, R.C. 2710.01 to R.C. 2710.10, prior to your appellate mediation.

 

• Do judges of the Court of Appeals know what transpires at Loc.R. VIII mediation conferences?  

The Court does not know what substantively has transpired at the appellate mediation conference and any settlement discussions or negotiations which have taken place are not revealed to the Court.  The appellate mediation process provides appellate counsel and the parties with a minimal risk and low cost environment in which counsel and the parties can actively explore options and avenues of resolution which are consistent with the best interests of their clients.  If no agreements are reached, the case is absolutely unaffected and those in the Court’s decisional process that might follow know nothing about the substantive mediation discussions.

 

• How can I best use the Loc.R. VIII mediation conference to benefit my client? 

Recognize that the Loc.R. VIII appellate mediation conference procedures provide a short window of opportunity to achieve a reasonably favorable outcome consistent with your client’s overall interests and risks.  While maintaining your role as an advocate, understand that the appellate mediation conference is essentially cooperative rather than adversarial.  Take advantage on appeal of the opportunity to talk constructively and confidentially with counsel for the other parties.  Listen closely to what the other participants have to say.  Try to be as candid as possible without posturing.  Be persuasive yet open to persuasion.  Keep in mind that your views and the views of opposing counsel about the case may change during the course of the appellate mediation process which may lead to additional avenues and options for resolution and mutual gain.  Likewise, a parties’ economical and personal circumstances may change over the months of an appeal.  In light of the above, be prepared to both initiate demands, offers and proposals as appellant’s counsel and be prepared to specifically accept, respond or counter-offer as appellee’s counsel with a supporting rationale.

 

• How can a Loc.R. VIII mediation conference be requested?  

Counsel may request a Loc.R. VIII mediation conference by contacting the mediator Aaron Hively at the Seventh District Court of Appeals, 131 West Federal Street, Youngstown, Ohio 44503, telephone no. (330) 746-5912, or e-mail ahively@mahoningcountyoh.gov.  Further, counsel may request a mediation by formal motion filed with the Court or indicate a preference for mediation on the docketing statement when filing an appeal.  Counsel will be advised by notice should a mediation conference be scheduled.

 

• Conference Order.  At the conclusion of the mediation conference, the court, upon recommendation of the parties and the conference attorney, may enter an order setting forth the actions taken and the agreements reached, which order shall govern the subsequent course of proceedings, unless modified by the court.

 

• Non-Compliance Sanctions.  If a party or attorney fails to comply with the provisions of the rule or the provisions of the prehearing conference order, the court may assess reasonable expenses caused by the failure, including attorney fees; assess all or a portion of the appellate costs; or dismiss the appeal.