NOTICE: This glossary of legal words and phrases is provided to help you better understand the legal terminology regarding mediation. THIS GLOSSARY IS NOT A SUBSTITUTE FOR THE ADVICE OF AN ATTORNEY.
THE COURT STAFF INCLUDING THE MEDIATOR CANNOT GIVE YOU LEGAL ADVICE. YOU SHOULD NEVER RELY ON THESE VERY BASIC DEFINITIONS TO MAKE LEGAL DECISIONS. Please use this glossary to get a general understanding of your legal circumstance and the mediation process.
Mediation—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, and cannot force the parties to settle.
Mediator—A mediator is an independent unbiased trained neutral, who works like a diplomat to help people settle disputes. The mediator can serve as a catalyst or go-between for communications aimed at settlement. The Clermont County Common Pleas Court has full time mediators who are attorneys. However, a mediator cannot give legal advice to either side.
Litigation—The process of filing and pursuing a case in court through and including a trial if necessary. Litigation can be relatively short, such as an eviction case, or it can be very lengthy, such as a major contract or personal injury case. Mediation can be used before litigation starts or during litigation in court.
Pre-suit mediation—Using the services of a mediator to try to resolve a dispute before a case is filed in court. Pre-suit mediation can occur by agreement, or may be required under a contract between the parties.
Arbitration—A process where the parties to a case submit their dispute for decision to one or more neutrals who are not judges. The parties make presentations of facts and law to the arbitrator(s) under relaxed rules of evidence and procedure. A decision in arbitration, called an award, can be binding on the parties, or can be non-binding. In many ways, arbitration is the opposite of mediation, as a mediator makes no decision, while an arbitrator does.
Negotiation—A direct discussion process seeking the end of a dispute through mutual agreement. Parties and/or their attorneys communicate proposals for resolution and engage in back-and-forth discussions until satisfactory terms are reached (often involving an agreed payment), or a decision is made to go to trial. Negotiation can be used before or after mediation, and before or after litigation starts.
Settlement Conference—A meeting with a judge or magistrate who will preside over a trial to discuss settlement of a pending case before trial starts.
Dismissal without prejudice—Closing a case and removing it from the court docket. Without prejudice provides the legal opportunity to bring the same claims back to court later on. This is one form of resolution of a case in court, and can be the result of mediation.
Dismissal with prejudice—Closing a case and removing it from the court docket. With prejudice creates a legal barrier to ever bringing the same claims back to court later. This is one form of resolution of a case in court, and can be the result of mediation.
Release—A signed binding contract giving up the legal right to ever pursue the claims described in the release at any time in the future. A release can be given by one party, or can be given by multiple parties to each other (a mutual release.) Getting a release(s) of all claims is one of the goals of mediation.
MEDIATION PROCESS DEFINITIONS.
Mediation conference—A meeting of the mediator, the parties, and the parties’ attorneys to discuss and try to resolve a dispute or pending case. Mediation occurs in a conference or discussion format, and is not conducted as a hearing or trial.
Pre-conference statement—A brief summary of the facts of a case or dispute submitted in advance of a mediation to bring the mediator up to speed on the circumstances. Pre-conference statements can be required by a local rule of court.
Joint session—Any part of a mediation where the mediator, all parties, and the attorneys are present in the same conference room at the same time.
Caucus—Those parts of a mediation where the mediator is talking with only one side of the case at a time. Caucuses are used to privately discuss in greater detail the interests and concerns of that side, and to generate new settlement proposals that the mediator can communicate to the other parties.
Introduction—The first stage of a mediation where the mediator introduces themselves, asks the parties and attorneys to introduce themselves, and explains the basic mediation process to everyone. The introduction occurs in the first joint session of the mediation. The introduction also establishes the mediator’s ground rules and expectations for mediation procedure, including such basics as only one person talks at a time, no interruptions, the mediator has the floor when needed, etc.
Uniform Mediation Act (UMA)—The statute in the Ohio Revised Code (ORC) that legally governs some aspects of mediation. The UMA creates privacy protections for the mediation discussions and separates the mediation function from the work of judges. Please consult ORC 2710.01 to .10 for all the provisions of the UMA.
Privilege—The specific privacy protection created by the UMA where participants can control what discussions or statements are revealed later in court or other proceedings. The privilege works by blocking someone else from testifying about statements made in mediation. Please consult ORC 2710.03 for exact details.
Exceptions to privilege—The UMA provides that certain information is not protected by the mediation privilege that the UMA creates. The information not protected would include a settlement memo signed by the parties, information about child or elder abuse, planning a future crime, and threats of violence. Please consult ORC 2710.05 for exact details.
Confidentiality—The ability of mediation participants to control by agreement what is or is not revealed to outsiders about discussions in a mediation, or what the results of a mediation are. Please consult ORC 2710.07 for exact details.
Bates number—Named for the Ohio Supreme Court case Robinson vs Bates, this dollar figure is the calculation of what was actually paid by health care or other insurance for medical care received by an injured party. A Bates number is frequently the subject of some discussion in a personal injury case mediation. The listed amount of the bill (the retail price) is different than what insurance companies really pay after discounts (the wholesale price.) Under the Bates case, a jury is entitled to know both numbers. The lower “wholesale” Bates number is frequently used in mediation to evaluate the extent of an injury.