With the advent of tort reform in Ohio and other factors (including the exorbitant cost of taking some cases to trial), there has been “a precipitous decline in civil trials across Ohio.” See Ohio Trial, page 12. Parties are thus choosing to resolve their disputes in other ways, including through mediation. So what is mediation, and why might it be a good option for your case?
What is mediation?
Mediation is a form of alternative dispute resolution in which a neutral third party (a mediator) “facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.” See ORC 2710.
The mediator has no decision-making authority and seeks only to assist the parties in resolving their dispute. Mediators may be hired or employed by the courts or agreed to by the parties.
Although courts may sometimes order that parties participate in mediation, at no point can any party be forced into accepting a resolution. All parties must agree to a proposed resolution. If the parties come to an agreement, the agreement then becomes binding.
How is mediation different than arbitration?
Arbitration is another form of alternative dispute resolution. In arbitration, parties are usually, by contract, obligated to submit their dispute to one or more arbitrators (decision makers). Although the parties may be able to select the arbitrators for their dispute, the decision issued by the arbitrators is often binding.
What does mediation look like, practically speaking?
Generally speaking, mediation is undertaken at a location where each party (and, in applicable, his / her attorney) is in a room apart from other parties. Prior to mediation, the parties inform the mediator of their respective positions. At mediation, the mediator then circulates between the various parties, working to see if he or she can find common ground, and hence, a resolution. In cases of personal injury and medical malpractice, the mediator’s goal is to achieve a financial settlement for the injured party that is agreeable to all involved.
Although it can vary, mediations may last between several hours, and in rare cases, over several days.
Can mediation result in partial, but not complete, resolution of disputes?
Absolutely. Complex cases (like medical malpractice and product liability cases) may involve multiple parties and multiple claims. A mediation may often result in a resolution of claims between some, but not all, parties.
Can cases settle even after mediation ends?
Yes, and they often do. For example, mediators may recognize that the parties are close to resolving their dispute, but a resolution isn’t going to happen on the very day of mediation. In such cases, good mediators continue to work with the parties after the mediation has ended, eventually helping the parties to reach an agreement.
What are the benefits of mediation?
Mediation is often useful, even if it doesn’t result in a resolution.
First, mediation allows the parties to see the potential strengths and weaknesses of their case from other perspectives (including adversaries). This insight can be invaluable in preparing the case for trial, if a resolution doesn’t result.
Second, and anecdotally speaking, mediation can be cathartic. It provides a non-judgemental forum for parties to voice feelings about the dispute. This is especially true when the dispute arises from traumatic personal injury and medical malpractice cases.
Third, the communications associated with mediation are confidential by statute and not admissible at trial per the Ohio Rules of Evidence. In other words, if mediation fails, a party is not bound by offers / demands made at mediation. This is important in having the ability to take a certain position during trial.
Finally, and most importantly, mediation provides an excellent opportunity for plaintiffs to leverage the strengths of their case prior to incurring the expense and risk associated with trial.
If mediation fails, what happens next?
Parties may continue to negotiate up to and through trial. On the other hand, parties may reach an impasse such that continuing to negotiate is futile. In this case, proceeding to a jury verdict may be the only option. And yes, there are some cases that should be tried, and Beausay & Nichols is confident in identifying those cases.
