The Twelfth District Court of Appeals is committed to the success of our Appellate Mediation Program. Select a topic below or scroll through all the topics on this page.
Mediation, governed by R.C. 2710.01, et seq., is a process in which a neutral third party (the mediator) helps the parties to a legal dispute discuss possible ways to resolve the issues without need for further litigation. A mediator does not take sides and does not decide who is "right " or "wrong. " Instead, the mediator gives each party some thoughts on how particular arguments or facts might be perceived by the Court so that the parties can evaluate their case and make an informed decision about whether to proceed with legal action or reach a settlement.
Even though the trial court has already determined some or all of the issues in the case, both parties face increased legal fees, loss of time, and the stress of an appeal, in exchange for an outcome that is, at best, uncertain. Appellate mediation gives parties an opportunity to avoid the more challenging aspects of the appellate process and work together to control the outcome of the dispute. This can include negotiating a global settlement of other, related cases or issues that would not otherwise be decided by the appeal.
One of the most important aspects of mediation in Ohio is that all mediation communications are confidential and privileged. R.C. 2710.03 With very few exceptions, everything that the parties communicate to one another or to the mediator cannot be communicated to anyone outside of the mediation process.
This means that the parties cannot use mediation conversations against one another in future court proceedings, including the appeal being mediated. It also means that the Mediation Attorney/Appellate Mediator cannot share mediation communications with the judges or anyone else within the Court. The Mediation Attorney/Appellate Mediator also will not share information one party shares confidentially to the other.
As a result, parties can rest assured that they can have open, candid settlement discussions without risking their position in the appeal or other civil proceedings.
Any appeal from a civil, domestic relations, or juvenile support case, as well as original actions, may be mediated.
If a case is selected for mediation, all parties are required to participate.
All parties and all lead counsel must attend mediation conferences in person. Exceptions to this rule are granted sparingly and only when requested ahead of time or under extraordinary circumstances.
Counsel
Lead counsel is the attorney on whose advice the party primarily relies. Often times when more than one attorney is representing a party, lead counsel may not be the most familiar person with the case (for example, co-counsel or an associate may have handled a pivotal hearing or been primarily responsible for critical discovery). In that event, both lead counsel and the attorney who is most familiar with the case are required to attend the mediation.
An organization as a party
When a party is an organization, such as a municipality or a business, the person who participates for the party at the mediation is expected to have full settlement authority and be knowledgeable about the case. If the person who is most familiar with the case does not and cannot be given full settlement authority, both the person most familiar with the case and someone with full settlement authority are required to participate.
The mediations are held in person at the Twelfth District Court of Appeals' building located at1001 Reinartz Blvd., Middletown, Ohio 45042. Directions are available here (link to google map location). Mediations may be held by telephone or video conference.
The Court's Mediation Attorney (link to Meet the Mediator tab) (the Mediator) conducts all mediation conferences.
Parties and their attorneys required to consult before mediation to discuss settlement authority, goals for resolution, and the merits of the appeal. Parties and their attorneys should also discuss if there are other stakeholders who either need to participate physically or might need to be available by phone during the mediation. A good example is, in a divorce case involving shared parenting, a grandparent or adult sibling who helps transport a minor child to school may need to be consulted about what types of transportation arrangements are feasible.
While Mediation Statements (link to Mediation Statements & Tips tab)are not required, many parties and attorneys find it helpful to prepare a Mediation Statement in advance to analyze the factual and legal issues of the case, what might happen if the case is remanded (sent back) to the trial court, and what other proceedings may follow the appeal. Mediation Statements can also include other information that the Mediation Attorney might not know from reading the filings but will be relevant in mediation. Mediation Statements can be shared with the other side or can be shared confidentially with the Mediation Attorney only.
Mediation conferences are very different from court hearings or arguments. During mediation, discussions are typically conversational rather than argumentative, and for good reason: no one will decide a winner or a loser, but rather the parties will decide if they can come up with a better solution than continued litigation. Being able to temporarily discuss the issues in a collaborative, rather than adversarial, manner is the key to making mediation successful.
Initially, procedural issues and questions are often addressed. One common procedural issue is whether the appeal is ready for review, including whether there is a final appealable order, was the appeal filed on time, or other issues that might need to be resolved before the Court can hear the appeal.
Next, the primary substantive issues and anticipated assignments of error (the areas where the appealing party believes the trial court made a mistake) are then discussed. For example, in a divorce case, a substantive issue on appeal might be the calculation of spousal support. The assignment of error related to spousal support would be the specific mistake or mistakes the appealing party believes the trial court made in calculating spousal support, such as whether the trial court erred by imputing income to a spouse who is unemployed or whether the trial court erred in determining the end date of the marriage.
Substantive issues are generally discussed in the context of the appellate standard of review that applies, which is the framework that the Court uses to determine whether the trial court made an error. The standard of review is important to all parties because it effects how likely or unlikely it will be for either party to win on appeal. Some standards of review require that the Court give considerable deference to the trial court's decision. Other standards of review require that the Court review the trial court's decision anew, without giving any deference to what the trial judge concluded. Some standards of review are somewhere in between. Which standard of review applies is not always clear, so the attorneys may discuss the strengthens and weaknesses of their position in the alternative.
After that, the parties will actively explore ways to settle the case, focusing 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. This often involves the Mediation Attorney meeting with each side separately (called "caucusing ") to confidentially discuss the issues and come up with ideas for settlement. Typically, the appellant, the party who filed the appeal, is the one who makes the first offer. The Mediation Attorney will take that offer to the appellee, the party defending the appeal, to discuss. Sometimes, the Mediation Attorney will meet with the attorneys from each side without the parties to discuss legal issues or clarify what happened in front of the trial court. Regardless of how the mediation progresses, settlement offers and proposals will be discussed thoroughly by all involved.
If the parties reach a settlement, the parties typically draft a settlement agreement memorializing the terms of the deal. If the parties need to file any paperwork with the trial court, such as revised shared parenting plans or other documents, the parties/their attorneys will be responsible to address that in a timely manner and inform the Mediation Attorney of the progress. Once all of the necessary paperwork is complete and the attorneys have so advised the Mediation Attorney, the Court will dismiss the appeal.
If a settlement is not reached at mediation, the Mediation Attorney will take one or more of the following actions, depending on the circumstances of the case:
The goal is that by the end of mediation conference, the parties have either reached a settlement or have identified the remaining obstacles or issues impeding settlement.
Discussion of settlement is not necessarily limited to the appeal itself. If settlement of the appeal will not dispose of the entire case, or, if related litigation is pending or anticipated in other forums, counsel are invited and encouraged to explore the possibility of a global settlement.
How long do mediation conferences last?
The Court typically sets mediation conferences for up to five-hour sessions. Historically, up to five hours has been needed to fully explore settlement and leave enough time to memorialize the parties' agreement if a resolution is reached. While the Court respects the fact that the parties and their attorneys have other obligations, it is highly recommended that the parties and their attorneys be mindful that sometimes mediation conferences can exceed the time allotted and if the mediation is making progress, it might be difficult to regain that momentum if the parties leave the mediation without finalizing their agreement.
Sometimes, because the case is complex or the parties want to reach a global settlement of the appeal as well as other, related legal proceedings, additional time will be necessary. Whenever that is the case, a party or counsel can contact the Mediation Attorney to extend the time for the mediation conference.
Referral to mediation does not automatically extend deadlines set in the Court's Scheduling Order for the case. The parties are still required to request any extensions needed before those deadlines occur.
To facilitate mediation related extensions, the parties can request an extension three different ways:
OR
Regardless of how the party chooses to request an extension, the party is required to contact opposing counsel for all other parties to determine if the other parties will consent to the extension or plan to oppose.
No. What the parties discuss in mediation is confidential and privileged, subject only to very limited exceptions as stated in O.R.C. § 2710.03 and Loc.R. 22. The judges, court staff, and court administration do not know anything about what the parties discussed, who offered what, or how the parties analyzed the case. If the parties do not reach a settlement, the case proceeds as if the mediation had never occurred. The Court takes mediation confidentiality very seriously because it is a big part of what makes appellate mediation a low cost, no risk way to explore alternatives to the expense and stress of pursuing an appeal.
See the separate section on Requesting Mediation. (link to Requesting Mediation tab)
Contact the other party/ies or, if represented by counsel, the attorney/ies for the other party/ies to discuss some dates when everyone required to participate in mediation could attend. Once alternative dates have been identified, call or email the Mediation Attorney to request that the mediation be rescheduled. Please indicate which parties have been consulted and which alternative dates have been identified.
Yes, but all parties are strongly encouraged to seek legal representation for all aspects of the appeal, including mediation. The Mediation Attorney does not represent any party and cannot give legal advice, even if the party is without an attorney. Resources about legal aid and other reduced cost ("pro bono ") programs for legal services that may be available in the party's area and requirements for self-representation are available here. (link to Parties Without Attorneys tab)
A mediation statement is a short, informal report voluntarily submitted to the mediator in advance of the mediation by a participating party. Its purpose is to educate the mediator on the history, issues, interests, obstacles, and possible solutions likely to surface during the upcoming mediation. The contents are completely confidential and are not revealed to the court or any other party. The decision to submit a mediation statement is entirely voluntary with each party. A mediation statement should rarely exceed five pages in length and can be much shorter.
The more a mediator understands the dynamics of a case, the better he/she can assist the parties in understanding each other and identifying possible solutions. In short, increased knowledge helps to resolve disputes.
Mediation statements should not be filed, but rather can be mailed, faxed, or e-mailed directly to the attention of the Mediation Attorney (mediator) as follows:
Address: Twelfth District Court of Appeals
ATTN: Mediation Attorney
1001 Reinartz Blvd.
Middletown, Ohio 45042
Fax: 1-513-425-8772
e-mail: mediation@12thdca.com
All correspondence addressed to the Mediation Attorney will be kept strictly confidential and will not be communicated to the judges, staff attorneys, or court administration for any purpose.
Questions about any aspect of the Court' s Mediation Program can be addressed to Sasha Blaine, Esq. by calling (513) 425-6609 or emailing mediation@12thdca.com./p>
Most attorneys are most comfortable wearing their litigation "combat helmet. " Mediation, however, is a collaborative process where the parties work together with the goal of finding a mutually agreeable solution. With the confidentiality protections, mediation is short and unique window of opportunity for the parties to quickly reach an outcome that they can control. Mediation results in settlement when the parties are able to find a solution that is better than more litigation.
Successful attorneys in mediation give opening statements that focus on the issues that the parties need to work on together, which is very different from making an argument at a trial. They communicate their clients' objectives about solving the problem while emphasizing points of commonality and the desire to end the dispute. The successful attorneys know that posturing and aggressiveness are counterproductive in mediation. An attorney who shows a problem-solving attitude will likely find his/her client doing the same, which facilitates settlement.
It can be helpful for attorneys to have this discussion with their clients in advance so that the clients are not taken by surprise when the combat helmet is temporarily removed. The Mediation Attorney will typically reinforce that point at the beginning of the mediation. If mediation does not end in a settlement, the attorneys can always put that combat helmets back on.
It's not as involved as trial preparation, but some advance thinking can dramatically improve the odds of an agreeable result. Determine your client's underlying interests in the matter. What interests are motivating the other side? Reflect on what has prevented resolution of the case so far. Is there any missing information out there that would be helpful? Be sure to also talk with your client frankly and realistically about the case as it now stands in the Court of Appeals. Clients appreciate aggressiveness and diligence on their behalf, but also respect honesty and candor from their lawyer. Is the time and expense of an appeal the best way to achieve a result your client can accept? What will be involved to collect on a judgment after appeal? How significant would the speed, control, certainty, and flexibility of settlement through mediation be for your client? Is this round of litigation certain to end it all? Is there any value to closure of the matter and the peace of mind it would bring?
All attorneys think to include the client, but are there any other persons needed for final settlement authority? The most obvious example would be the insurance adjuster or counsel in a case involving insurance coverage. If these additional people are located outside of reasonable driving distance, check in advance about their participation by telephone to prevent holdups in the mediation process.
Attorneys frequently underestimate the value of allowing a client to "vent " to a third party in their own way. Additionally, discussing the problem, working through the emotional barriers, and exploring settlement options takes time and, to be effective, can't be hurried. Your natural inclination to "cut to the chase " misses the point of mediation. It's not unusual for an attorney to see little "progress " for 60-90 minutes only to witness unprecedented strides thereafter. Mediations at the Court of Appeals are generally scheduled for five hours, but occasionally go much longer. Often, the longer ones are the most successful.
Because of the nature of mediation, you will most likely discover new insights, information and ideas that will change the way you think about the case. A predetermined "bottom line " deprives your client of the flexibility needed to benefit from this new influx that mediation is designed to provide. Therefore, to come to mediation "with authority " means to come with a genuinely open mind.
Mediations, while informal, are an official proceeding of the Court of Appeals. Parties should be punctual as they would be to any court proceeding. In mediation , there is also a practical consideration: causing the other party to needlessly wait often stirs up ill feelings that can hinder mediation efforts. You can end up not getting the results you may have otherwise achieved.
The fact that a case is in mediation with the Court of Appeals does not affect the established scheduling order. However, to keep costs down for the parties (preserving resources that could be better used to resolve the case), the Court will allow the parties to request an extension of a deadline to file the record or brief for the purpose of pursuing resolution through mediation. Such requests can often be made simply by telephoning the Mediation Attorney rather than by the usual written motion. See Loc.R. 22(D) (link to Local Rule 22 tab) for more details .
"Mediation Tips for Attorneys " includes information and materials from the mediation programs of other Courts of Appeals of Ohio and from the Circuit Mediation Offices of the Sixth and Ninth Circuits of the United States Courts of Appeals.
All parties without attorneys are encouraged to review the Ohio Twelfth District Court of Appeals Pro Se Handbook, as well as the court's Local Rules.
The Right to Counsel
While all parties have the right to be represented by counsel, only indigent parties who have been charged with a crime involving a potential jail or prison sentence are automatically entitled to appointed counsel.
Parties to civil matters, such as divorce, foreclosure, consumer protection, and debt collection matters, still have the right to legal representation, tut they are not entitled to appointed counsel.
While parties have the right to have counsel, they are not legally required to exercise that right. In other words, a party is free to choose not to retain counsel for an appeal. Like all choices, the decision to proceed without counsel has consequences.
Court Rules
One of the most important consequences of proceeding without an attorney is that the party will be responsible for complying with all rules of the Court – the Ohio Rules of Appellate Procedure and the Twelfth District Local Rules, as well as the Ohio Civil, Criminal, Juvenile, and/or Evidence Rules, depending upon the case. Because the Court must treat all parties the same regardless of whether they have legal representation, the Court cannot excuse an unrepresented party from failing to follow the applicable rules.
If a party fails to follow the applicable rules, the Court may, in its discretion, strike non-compliant documents from the record, issue a Show Cause Order directing the party to comply with the applicable rules, dismiss the appeal, and/or assess sanctions against the party. If a party is unsure about being able to follow all of the applicable rules, the party is encouraged to seek legal representation immediately.
Corporations, LLCs, and other business entities
An individual can represent him/herself in court without an attorney ("appear pro se "). This can include filing documents, participating in mediation, and making an oral argument.
However, business entities such as corporations and limited liability companies (LLCs) generally cannot represent themselves by having a corporate officer appear in court. Business entities almost always require an attorney to represent their interests. In-court actions taken by individuals who are not attorneys on behalf of a business entity may be stricken at the Court's discretion, cause the appeal to be dismissed or decided without the business entity's brief, and/or subject the business entity and the individual to be sanctioned. If you are a business owner, member, or shareholder and your business entity is involved in an appeal, you should immediately investigate whether your particular business needs to be represented by an attorney.
Advice/Representation from Non-lawyers
Legal cases can be difficult for those involved, with or without an attorney. It is understandable that parties may talk to family, friends, and coworkers about their legal matters.
But parties should be careful about relying on legal advice from anyone who is not an attorney licensed to practice in Ohio. Mothers, fathers, siblings, and friends may be wise in many things, but may not know enough about the law to help a party make an informed decision. Even if a non-lawyer had a legal matter in the past that seems similar, the law could have changed, or a seemingly small fact could legally require a different outcome.
Similarly, a party cannot be represented in court by a non-attorney. This means that even a non-lawyer who is a party in the same case cannot file legal documents or make arguments on behalf of another party in the case. Parties also should not allow anyone who is not an attorney to "ghostwrite " legal documents.
The rules prohibiting non-lawyers representing parties in legal matters are there to protect the public from having unintended negative consequences to the party's case. Any party with questions about these rules should seek legal representation immediately.
Interaction with the Court
The Court, including its attorneys and staff, cannot give legal advice to anyone, even if that party does not have an attorney. The Court may provide general information regarding the status of the case, upcoming deadlines, etc. but cannot help a party with the substance of the appeal, including but not limited to what arguments to make or what legal authority to cite. If a party has questions about the substance of an appeal, the party should immediately seek legal representation.
Pro Bono Programs
That said, indigent parties involved in a civil case may be able to obtain free or reduced fee ("pro bono ") legal services. Because pro bono programs may have an application period and/or may require documentation from the party before providing legal services, parties are encouraged to investigate their options as soon as possible.
Lawyer Referral Services
If a party does not qualify for or chooses to forego pro bono services, the party may be able to find legal representation using a lawyer referral service. A lawyer referral service can often provide a party a list of attorneys who practice a particular type of law who have expressed interest in taking on appellate cases in those practice areas.
Some lawyer referral services require the attorneys to charge a consultation fee to discuss a case with a party while some do not. Regardless, because different programs operate differently, a party should ask the program representatives any questions before contacting the attorneys mentioned.
Resources:
Please contact the Mediation Office for Forms
Address: Twelfth District Court of Appeals
ATTN: Mediation Attorney
1001 Reinartz Blvd.
Middletown, Ohio 45042
Fax: 1-513-425-8772
e-mail: mediation@12thdca.com
A party or attorney has three different ways to request mediation:
Because a motion, once filed, becomes a public record, a Motion for Referral to Mediation is not confidential, and not typically the recommended way to initiate mediation. If the party or attorney wishes the request to remain confidential, the party or attorney is advised to email the Mediation Attorney and indicate in the subject line "Confidential Request for Mediation. "
The Court retains the right to schedule a case for mediation with or without a request if it appears that the case could benefit from mediation.
Sasha A. M. (VanDeGrift) Blaine, Esq. is the Court's Mediation Attorney and Appellate Mediator. Sasha is an OSBA Certified Appellate Specialist and a frequent presenter on appellate law topics, including appellate procedure, final appealable order law, oral argument strategies, and brief writing. Sasha has also served as a faculty assistant for the National Judicial College’s Civil Mediation course as well as numerous CLEs and presentations on mediation and conflict resolution strategies.
Before serving the Court, Sasha gained extensive appellate experience practicing law for a large firm in Dayton. Sasha also served as a Staff Attorney for the Montgomery County Court of Common Pleas and as an adjunct professor and academic advisor for the University of Dayton Law School.
If you have questions about the Program, Email Sasha or call (513) 425-6609.
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