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Mason Municipal Court Front View



February 4, 2004

Mediation Program, a Proposal


Courts are empowered by our form of government to be the final decision maker in dispute resolution. All courts must be and are governed by rules of procedure that sometime intimidate people and following these rules can hinder the flow of factual information. Unlike judicial settlement conferences and negotiations, experienced mediators commonly include individual parties in the give and take of negotiations, allowing parties to discuss the past, but redirecting the focus of the session on the future. The court bases its decision on the information that has and applies all appropriate laws. The mediators on the other hand spurs new ideas for resolution, set agendas that build momentum toward settlement, and in general, engage in other activities that produce settlement earlier in the case and with more frequency than settlement conferences and negotiations.

“The processes that experienced mediators use are simple, even in complex disputes. The parties are provided a forum where they can vent their feelings while telling their “stories” so that they feel heard and understood. The mediator thus enables them to approach their conflict with clear heads and greater objectivity. They are then encouraged to disclose information they have not disclosed before, listen to things they have not heard before, open their minds to ideas they have not considered and generate ideas that may not have previously occurred to them.”~ Nancy H. Rogers and Richard A. Salem

Mediation adds a number of benefits to negotiation. For instance, the parties often will trust the mediator, an experienced neutral, to control the agenda. In separate sessions, they may confide in the mediator, who then may realize that the parties’ settlement positions are not far apart. The neutral mediator also may cause the parties to face reality. The mediator may help them communicate more effectively and listen to each other. Roselle L. Wissler, EVALUATION OF SETTLEMENT WEEK MEDIATION (The Supreme Court of Ohio Committee on Dispute Resolution, 1997).

The mediation process also differs markedly from pre-trial conferences hosted by the judge. In mediation, the parties have no reason to act strategically before the mediator during separate caucuses. In contrast to the judge, the mediator will not rule if the case does not reach settlement. This leads to more party participation and more candor on the part of the parties. Mediators, unlike judges, can be frank, even in the presence of the parties. Mediators can meet separately with each side, without the concern that judges may have about hearing ex party communications. Typically, mediators can spend more time than is available to judges to explore possible avenues to settlement.

Therefore the Supreme Court’s Committee on Dispute Resolution became committed to the idea of bringing mediation to Ohio in 1989. After experience in several areas in Ohio with municipal court mediation, domestic relations court mediation and appellate court mediation, the Committee, in 1995, began looking for ways to bring mediation to Ohio’s general jurisdiction common pleas courts as well. To this end, the Committee did extensive research on Settlement Week programs in four common pleas courts. Then, in 1996, the Committee planned the three-court pilot mediation program, with grants to begin staff mediation programs to common pleas courts in Stark, Clinton and Montgomery counties.

All three of these initial pilot programs were successful. During their first three years of operation, these three programs mediated 1,095 cases. Of these cases, 755 (69 percent) were settled either at mediation or before a pre-trial hearing was scheduled in the case. In fact, the initial pilot program was so successful, that in 1998, the Court expanded the program to 12 additional counties. The part-time programs established in two of the pilot programs were expanded to full-time positions. Judges in these programs are pleased with their contributions.

Which cases are appropriate for mediation? This questions raise issues about which cases are most likely to settle in mediation and which cases are appropriate for policy reasons. In the event decisions are made on a case-by-case basis, the question also should be answered in terms of the process for selecting the cases.

For mandatory mediation programs, courts are authorized to make choices regarding what types of disputes to channel through the mediation process. Yet, often this channeling is performed intuitively, leaving the precise criteria used for selecting cases for mediation unarticulated. One reason for selecting cases intuitively may be due to the fact that research offers little empirical evidence on what case characteristics make a particular dispute suitable for mediation. For example, Ohio research from the three pilot court mediation programs concluded that none of the following five case characteristics increased the likelihood that full settlement was reached during mediation: type of dispute; trial date within three months; level of discovery completed; number of depositions taken; and status of pending motions including motions to dismiss or for summary jury trial. At the same time, court personnel, attorneys and parties may be less likely to understand and accept the mediation process if case selection criteria are not specified. For that reason, the National Standards for Court-Connected Mediation Programs suggest that when courts must choose between cases or categories of cases for which mediation is offered; such choices should be made on the basis of clearly articulated criteria.

For those cases that ultimately settle before trial, settlement often occurs on the eve of trial or on the courthouse steps on the day of trial. Frequently settlements that occur late in the litigation process are a result of parties failing to focus realistically on their cases early enough in the litigation process. Early selection and referral of cases to mediation create a meaningful event in the life of a case, which in turn speeds up the progress made toward settlement. The benefits flowing from early mediation referrals potentially can provide cost and time savings to both the court and the parties involved in the dispute.

Therefore in addition to almost all civil complaints, many criminal charges that are filed, particularly in the area of bad checks, neighbor or neighborhood disputes that have blossomed into emotional issues manifested as criminal actions that cannot be resolved between the parties without guidance, domestic disputes that are not necessarily violent and any non-violent criminal complaints are all targets for this process as long as the process is implemented in a timely manner.

The criteria used to select cases for mediation often are based on the likelihood that settlement will be reached by the intervention of mediation in certain categories of disputes. It is important to note that some mediation experts de-emphasize the utility of a case selection process which focuses solely on the settle-ability of categories of cases. The reason for the opposition is the belief that some elements of a dispute favoring the intervention of mediation will not be apparent from case type alone. One such view was expressed by Robert Rack, who from his experience concludes, “It’s hard to figure out what kinds of cases are likely to settle because settle-ability depends largely on the parties’ motives.” Similarly, other commentators caution that “people issues” such as the personalities of the parties, the needs of the parties to tell their stories and the attitudes of the parties to one another cannot be separated from legal, factual and procedural issues when analyzing individual cases for mediation. Likewise, research from the Ohio three court pilot mediation programs reveals that both attorneys and parties said that an unfavorable aspect of the mediation was that the other side was “unreasonable, unrealistic, unprepared, or uninterested in reaching a resolution”. All of these “people issues” are not apparent from case type. Thus, settle-ability that focuses solely on the legal nature of a dispute may be only partially effective in identifying suitable cases for mediation because it fails to consider such variables as the party motivations, which also play a role in the resolution of disputes.

Based on the conclusions of these studies, the Mason Municipal Court has developed plans to implement a mediation program. Any questions or comments that you have concerning this program please forward to info@masonmunicipalcourt.org
















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