FREQUENTLY ASKED QUESTIONS ABOUT MEDIATION
NOTICE REGARDING COURT MEDIATION
Due to the Court’s operational changes and continuances of civil trials in light of the coronavirus, the Court is expanding its mediation program to include mediation by telephone, video conference, and email. Any attorney seeking to mediate a pending matter should email their contact information, with the case style and number, to firstname.lastname@example.org. The Court Mediator will respond by email with the logistics of how and when to set up a remote conference call or video conference. Counsel should give consideration to cases that: (1) have been mediated previously and need follow up, (2) cases set in March through June that were continued based on the Court’s policy notice of March 17, 2020, (3) cases that are set for trial in the near future, (4) any case that would benefit from early mediation to reduce discovery and other costs, and (5) any civil matter that would benefit from mediation.
What is mediation and how does it work?
Mediation is a process of guided negotiations. A neutral individual, called a mediator, works with the parties to a pending case in a discussion of their problem. The talks are an effort to resolve the dispute by mutual agreement before it reaches a contested hearing or trial. The mediator serves as a discussion leader to help the participants negotiate more efficiently, and, hopefully, reach an agreement sooner than they could on their own. The mediator has no authority to make a decision.
What is a mediator?
A mediator is an independent, trained neutral, who works like a diplomat to help people settle disputes. The Clermont County Common Pleas Court has full time mediators who are attorneys, and the Court’s staff attorneys are also trained as mediators. However, a mediator cannot give legal advice to either side.
Where are mediations held?
Mediations are usually held in the conference room next to Courtroom 205, second floor of the Courthouse, 270 East Main Street, Batavia. When you get to the Courthouse, you will enter through the security screening, go to the second floor public lobby by stairs or elevator, turn left, and take the long hallway all the way to the far end of the Courthouse. Courtroom 205 will be straight ahead at the end of the hallway. The conference room will be the last door on your right before the courtroom. If your mediation has been changed to the Law Library or other place in the Courthouse, you will be directed to that location.
During the Covid-19 pandemic, many mediation are being held using Zoom or other digital meeting software. The Mediator will make the necessary arrangements with the attorneys involved in a case.
Why should I bother to mediate?
Many cases can be resolved through reasonable discussions. An experienced mediator can help the parties find a reasonable, practical, or creative solution that they may have overlooked. Mediation, with the chance to talk privately with the mediator, has a better opportunity to reach a resolution than a possibly tense or difficult one-on-one negotiation. Mediation also helps save the parties money and time, and avoids the risk of trial.
Will the mediator issue a decision in my case?
No. All the mediator can do is help the parties and attorneys look at the dispute more objectively, listen to each side privately, discuss various options for a settlement, and assist the participants in finding a mutually acceptable solution. A mediator makes no decision, judgment, or recommendation on the outcome.
What can a mediator tell a judge?
Next to nothing. The mediator will only tell the Clermont County Common Pleas Court whether or not the case settled. Discussions in mediation are inadmissible at trial under Evidence Rule 408 and the Uniform Mediation Act as adopted in Ohio. Even if the lawsuit goes to trial after mediation, the mediator is still subject to the obligation to disclose nothing about the discussions.
Should I bring witnesses and exhibits to the mediation?
No. A mediation is not like a trial or arbitration. The attorneys, the parties, and the mediator will discuss the facts of the case, but there are no witnesses, no testimony, no exhibits, no objections, no cross examination, and no arguments.
Will I be expected to testify?
No. Because mediation is a focused negotiation process, the mediator uses a courthouse conference room, but everyone sits at the table as equals in a discussion format. There is no witness stand and no testimony. You will be expected to listen, participate in the discussions as appropriate, and make decisions about how to negotiate, and whether or not to settle.
Can the mediator tell me how to handle my case?
No. The mediator is not there as a judge, jury, or arbitrator of the case, or as an advocate or advisor for either side. It is important that you analyze and reasonably evaluate your own case and the benefits of working out a possible settlement. The mediator may point out certain problems to each side, but this is just part of looking at the case objectively. The mediator, the attorneys, and the parties will also discuss the costs and drawbacks of going forward with trial as compared to the benefits of settlement.
Will the other side be there?
Generally yes. All parties, or their insurance representatives with authority to settle, should be at the conference and prepared to negotiate. Telephone participation is permitted by prior permission of the Court or the mediator. During the course of the mediation, the mediator can and usually will meet separately with each side for private, more candid discussions.
Will my attorney be at the mediation?
Yes. Under the local rules of court, trial counsel must be at the mediation.
I need a continuance of the mediation to another date. What do I do?
Any party seeking a continuance of a mediation conference must file a written motion with the Clerk of Courts giving their reasons for wanting a continuance. Any party trying to get a continuance should consult with the other parties first. The assigned judge or the assigned court mediator will rule on the motion.
Is there anything I need to do before the mediation conference?
Each party is required to provide a brief summary of the case to the assigned court mediator prior to the scheduled date. You may present the summary in letter format, use your own form, or fill out the Court’s standard form. MEDIATION CASE SUMMARY FORM
I want my day in court. Why should I settle?
Every citizen has a right to seek a fair hearing in court, but you should consider that a trial is not the only legal choice available. Most cases do not go to trial. Each side should thoroughly discuss every factor in the current situation before making the important choice to settle or go to a risky contested proceeding. Mediation is an opportunity for both sides of a case to explore settlement possibilities without risk or penalty, and with the aid of a trained mediator.
Is there a fee for mediation?
There is no extra cost or fee for using mediation within the Common Pleas Court. However, each side is responsible for their own attorney’s fees.
How long does a mediation last?
The time will depend on the complexity of the case. A mediation might last an hour, or it could go all day. You should plan on at least two hours for your mediation.
Is mediation open to the public?
No. Unlike a trial, a mediation conference is a private, closed proceeding. One advantage of mediation is that it avoids a public trial where all the evidence is disclosed and debated in open court.
Can the results of a mediation be appealed?
No. Because a mediator does not make a decision, there is no legal order to be appealed. If the parties reach an agreement, there is a contract to settle that is binding on all sides and the case is over. You can compare that with a trial where an appeal might add a year to the time it takes to resolve a case.
What happens if we can’t settle?
If the parties cannot settle at the mediation, several things might happen. The parties or attorneys may agree to negotiate further later on, or the mediator can schedule a follow-up mediation. There may be additional motions and other legal papers filed. Or the case could ultimately go forward in court.