1.
"Mediation FAQ's"
2.
"Introduction to Joint Court Mediation Program"
A. "Domestic Relations Mediation"
1. Article: "Custody Wars"
B. "Juvenile Court Mediation"
C. Civil Mediation
1. "Common Pleas Mediation"
2. "County Municipal Court Mediation"
3. "Small Claims Mediation"
D. "Other Non-Court Related Mediation"
By: The Ashtabula County Bar Joint Mediation Project
MEDIATION FAQ's
How does the mediation process work?
Simply defined, mediation is a process wherein a trained neutral assists parties
in developing a cooperative, self-determined resolution to the issues in
their dispute. Typically sessions are confidential with no statements
revealed to anyone not a party to the mediation. As a non-adversarial
method of dispute resolution the goal of mediation is a "win-win"
conclusion that derives from the mutual interest of the participants rather than
a "win-lose" outcome resulting from a third-party decision.
Parties retain their ability to obtain a resolution to their dispute in
situations when mediation does not prove to be effective. In a
court-referred case, for example, issues not resolved in mediation are heard by
the court and decided on by a magistrate, judge or jury. Similarly, parties with
a complaint about follow through on a mediated agreement are often entitled to
relief in court.
What roles do the participants have
in a mediation session?
The mediator is responsible for creating the
atmosphere for productive discussion, conducting the process in such a
way that the participants are able to communicate effectively with one another
concerning the issues to be resolved and possible options to that resolution.
The parties to the dispute as well as those assisting them such as attorneys are
active participants throughout the mediation and assume the task of developing
an outcome that is agreeable to all. Unlike going to court, where a judge
or magistrate makes the final decision, the parties have control over the
outcome and decide how to settle their dispute.
How confidential is mediation?
The mediator cannot be compelled to testify since Ohio law provides for
confidentiality in that statements made in mediation may not be revealed
to anyone not a party to the mediation. In situations where the court has
ordered that mediation be attempted, the mediator may submit a report to the
court stating that the mediation took place and that the matter did or did not
settle. Otherwise, the mediator discloses nothing to the court.
What types of disputes are appropriate
for mediation?
All disputes are "appropriate" as long as the parties are willing
to engage in the process. Though an ultimate settlement of the dispute may not
be achieved, the exchange of communication, clarity and opportunity for
understanding of the issues and possible outcomes can be advantages in and of
themselves.
Examples of factors that are taken into consideration in making the decision to
mediate include the ability and willingness of the parties to communicate
effectively and the legal nature of the issues involved.
How does mediation differ from other types of dispute resolution?
The clearest distinction between mediation and similar means of addressing
disagreements lies in who makes the decision. For example the arbitration
process results a ruling by the third party (in this case the arbitrator) which
may or may not be binding on the parties. In mediation the decision is made by
the parties themselves.
INTRODUCTION
In the spring of 1997 the Supreme Court of Ohio announced an effort to institutionalize
mediation throughout the state. The Judges of Ashtabula County believed that
based on the needs of county residents and the court system a comprehensive
mediation program could effectively address a variety of disputes. With the
goal of developing such an effort the Joint Court Mediation Project (JCMP) got
underway in December of that year.
Since that time the program has grown to include mediation of disputes within every
court jurisdiction in the county. Civil cases range from small claims
matters to common pleas suits. Referrals of juveniles with school attendance
and/or unruly behavior problems are regularly made through Juvenile Court and
resolution of parenting concerns (custody and visitation matters) is made
available through the Family Court Services office.
Participants in mediation sessions have consistently indicated they believe in
the worth of a non-adversarial process of resolving disputes made available
through the courts. As research has demonstrated, mediation decreases the amount
of time necessary to resolve matters (thereby reducing the cost of litigation)
while increasing satisfaction with the justice system. Providing these services without
charging a user fee means improved access to the justice system for
lower-income residents while reducing the number of cases on the court docket
forestalls the need for additional court personnel.
DOMESTIC RELATIONS MEDIATION
Referral of Cases
Mediation of Domestic Relations cases are coordinated by Sandie Wintz through
the Family Court Services Department. Mediations are conducted by the FCS staff
as well as the staff of the Joint Court Mediation Project. Parties may also
request mediation by a private mediator.
In newly filed divorce cases, once the parents have completed the Parent
Education Class offered through the Court, the parties are assigned to a
mediator and are notified by mail to contact that mediator in order to schedule
a mediation session. The Court also refers many post-decree parenting cases to
mediation.
Parents may also initiate mediation apart from a court order before or after
their final hearing. In these situations it is up to both parties to
contact Family Court Services before an appointment will be scheduled.
The Mediation Process
Parties typically attend these domestic relations mediation sessions together
and without counsel, though separate meetings are at times advisable and will be
arranged by the mediator. During the mediation process, the parties are
encouraged to relate the issues they believe to be important for consideration
and to listen to information and contributions from the other party. Ideas
relating to the future parenting of their children as well as proposals for
settlement of other issues important to the family will be exchanged and
evaluated by the participants together and in private meetings.
When an agreement has been reached, a memorandum of this agreement will be
prepared and given to the parties for their review and review by their
attorneys. This agreement may be filed with the Court if the parties wish to do
so.
CUSTODY WARS:
ASHTABULA COUNTY’S SANER ALTERNATIVE
"I’ll see you in Court! You know the kids would
be better off living with me. You may not listen to what I have to say, but you’ll
have to listen to the judge!"
Such emotion-packed language in a parenting dispute is commonly followed by
parents contacting their lawyers. Documents are then filed with the Court
requesting that some decision be made concerning the parental rights and
responsibilities of the parents. The maneuvering and posturing that ensues as
the parties and their lawyers prepare to present their evidence and witnesses to
the judge tend to increase the adversity and hostility in what is at best an
already strained relationship. Recognizing the trauma to the children as a
result of this ordeal, the Ashtabula County Court offers mediation as an
alternative.
The following discussion provides a brief example of a dispute situation, and
a description of the mediation process:
During the most recent court appearance in their continuing
"battle" over where their children would live, the judge ordered
Marcia and Derek to contact the court’s Family Court Services to make an
appointment for mediation. Given their history of bitterness and hostility,
neither Marcia nor Derek had very high hopes for reaching an agreement. They had
never been able to sit down and talk with one another about inconsequential
issues, let alone the very important issues that they were now being asked to
discuss. Unfortunately, their children were caught in the crossfire of this
bitterness, and had, for quite some time, been exhibiting signs of stress, pain
and confusion as a result of their parents’ unwillingness to cooperate with
one another.
Since before their divorce became final three years ago, the couple had been
involved in a bitter custody dispute concerning their three children: Eric,
Johnny and Brian. Each was certain that the motives of the other were malicious,
and that they alone knew the best interests of their children.
In spite of their anger and hostility towards each other, and their
commitment to their respective positions, both Marcia and Derek were deeply
concerned about the trauma to their children as a result of the constant arguing
and deep distrust for one another. They were also growing increasingly
frustrated with the time and expense involved in having their motions heard in
court. Scheduling conflicts and crowded court dockets made it a near certainty
that a trial date would be continued to a future time. Between the two of them,
they had spent thousands of dollars in attorney fees--which they both agreed
could be better spent on their children's futures. Perhaps worst of all, the
decisions the judges had made over the years, while made with the best interest
of the children in mind, failed to address all of their issues in a manner that
took into account the way their lives actually worked.
In their first session with the mediator they learned about the process.
Mediation, the mediator explained, is a voluntary, confidential, non-adversarial
process that allows the parties themselves to negotiate a settlement of their
disputes. While mediation is used successfully as a means of resolving a variety
of disputes, it is particularly helpful in parenting disputes where a couple, no
longer involved with each other as spouses or partners, must continue to parent
their children. The idea behind mediation in a parenting dispute is that the
couple who are in conflict about the parenting of their children meet with an
impartial third person--the mediator--to discuss options for settlement of their
dispute, and arrive at mutually acceptable resolutions.
In contrast to the adversarial method, mediation is a cooperative model based
on the idea that given the opportunity, and a structured process, parents can
determine for themselves how best to manage their restructured family while
continuing to be the best parents they can be. It is the job of the mediator to
help the parents identify the issues that need to be addressed, to facilitate
communications between the parents by helping them separate the emotion from the
issues, and to assist in developing options that will work for them and—most
importantly--for their children.
No lawyer or judge can begin to know the needs, hopes and desires of children
the way their mothers and fathers do. In developing a parenting plan through
mediation, parents are given the means to decide for themselves all the issues
which affect their children: where the children will live and go to school; when
and where they will spend time with each of their parents and their extended
families; how decisions will be made for the children; and so on. This plan will
take into account family traditions and priorities and can be tailored to the
individual needs of everyone.
Marcia and Derek talked with the mediator, and with one another, for about
one and one-half hours. Much of this discussion was emotional and filled with
anger, but with the help of the mediator, they were able to arrive at a plan for
the children for the following week at which point they were to meet for their
second session. During the next couple of sessions, after exploring various
options, they fashioned an agreement that served the interests of their children
in ways that would never have been possible had they not communicated with one
another directly. Marcia and Derek have not become "friends", but they
have come to understand that the continual fighting and battling over their
children serves no useful purpose, and that given the opportunity and
assistance, they could learn to communicate for their children’s benefit.
Many courts have begun to encourage mediation as a method for participants to
resolve disputes. In Ashtabula County, once a case has been filed with the
court, the Joint Court Mediation Project and Family Court Services work with
divorcing, divorced and never-married parents to help them resolve their
parenting disputes. Trained, experienced mediators assist in the communication
process so that a rational discussion can take place, with each person having
the opportunity to hear and to be heard. In spite of a history of anger,
hostility and resentment, parents who make a sincere attempt to resolve their
disputes through the mediation process find that they are able to fashion
agreements that will give their children the best possible chance of growing
into happy, well-adjusted adults.
JUVENILE COURT MEDIATION
Mediation is available for the following matters within the jurisdiction of
Juvenile Court: disputes regarding parenting (such as custody and
visitation), unruly behavior and school attendance (truancy).
Sessions are confidential and always involve a parent or guardian along with the
child and mediator.
Parenting
Although the judge or magistrate usually makes these referrals to Family Court
Services, parents may also initiate mediation on their own. In these situations
it is up to both parties to contact Family Court Services before an
appointment will be scheduled.
Parties typically attend mediation sessions together and without counsel, though
separate meetings are at times advisable and will be arranged by the mediator.
During the mediation process, the parties are encouraged to relate the issues
they believe to be important for consideration and to listen to information and
contributions from the other party. Ideas relating to the future parenting of
their children as well as proposals for settlement of other issues important to
the family will be exchanged and evaluated by the participants together and in
private meetings.
When an agreement has been reached, a memorandum of this agreement will be
prepared and given to the parties for their review and review by their
attorneys. This agreement may be filed with the Court if the parties wish to do
so.
Unruly Behavior
In cooperation with the Family and Children First Council (FCFC) and Juvenile
Court, a program has been developed for juveniles who have had a complaint filed
regarding their behavior. These young people and their parents participate in a
mediation session designed to provide an opportunity for the family to decide on
how those matters might be resolved constructively.
In the session the mediator helps parent and child discuss their mutual concerns
and develop an agreed plan to address the specific behavior in a way that is
satisfactory to both parties. As in many other types of mediation the agreement
is written by the mediator and signed by child and parent. If the matter has
been referred through the Court, juveniles who follow through with mediated
agreements can avoid further Court intervention. Referrals from the family for
parent-child mediations may be made on a case by case basis through the JCMP.
School Attendance
Concerns involving truancy are referred by school districts through a similar
process to unruly behavior complaints (above). The goal of mediation is to
identify what can be done to make future court involvement unnecessary.
School personnel such as attendance officers or administrators often participate
in the mediation session to assist child and parent in identifying specific
steps child and parent might take toward consistent school attendance. The plan
that the mediator writes details what all parties agree will be helpful in
achieving that goal. The family members sign the agreement and keep a copy so
everyone is clear on how progress will be made toward improvement. A pilot
program utilizing "pre-complaint" referrals is currently underway in
two county school districts.
CIVIL COMMON PLEAS MEDIATION
Referral of Cases
Civil Common Pleas cases are frequently referred to mediation during the
scheduling conference scheduled by the Court. Cases may also be ordered to
mediation during the course of any other court hearing or appearance. Cases can
also be scheduled for mediation in the absence of a court order when there is an
agreement to do so among all participants.
The Mediation Process
During the initial contact between the mediator and the attorneys or parties,
issues such as the appropriate time frame for the mediation, the presence of
necessary parties and other matters relevant to the mediation will be discussed.
Typically in these common pleas court cases, the attorneys and their clients are
present during all scheduled sessions. As the mediation session begins, all
participants are encouraged to relate the issues they believe to be important
for consideration, to listen to information and contributions from other
participants, and to respond as appropriate and desired. During the course of
the mediation process, ideas and proposals for settlement of the case will be
exchanged and evaluated by the participants together and in private meetings.
When an agreement as to the settlement of the case has been reached, a summary
of the agreement is prepared during the session and signed by the participants.
This agreement will be held in the mediation file until the final Judgment
Entry, prepared by the attorneys, has been filed with the Court.
COUNTY AND MUNICIPAL COURTS REGULAR DOCKET
Referral of Cases
Cases filed in the general division of the County and Municipal Courts of the
County may be referred to mediation at a pre-trial conference or other hearing.
Cases can also be scheduled for mediation in the absence of a court order when
there is an agreement to do so among all participants.
The Mediation Process
During the initial contact between the mediator and the attorneys or parties,
issues such as the appropriate time frame for the mediation, the presence of
necessary parties and other matters relevant to the mediation will be discussed.
Typically in these mediations, the attorneys and their clients are present
during all scheduled sessions. As the mediation session begins, all participants
are encouraged to relate the issues they believe to be important for
consideration, to listen to information and contributions from other
participants, and to respond as appropriate and desired. During the course of
the mediation process, ideas and proposals for settlement of the case will be
exchanged and evaluated by the participants together and in private meetings.
When an agreement as to the settlement of the case has been reached, a summary
of the agreement is prepared during the session and signed by the participants.
This agreement will be held in the mediation file until the final Judgment
Entry, prepared by the attorneys, has been filed with the Court.
SMALL CLAIMS MEDIATION
Referral of Cases
Upon the filing of a small claims complaint, the case is scheduled for mediation
to be held at the court in which the complaint was filed. Parties are notified
by mail of the date at the same time they are notified of the small claims
hearing. This notice also instructs parties to contact the Joint Court Mediation
Project office to confirm that they will attend as ordered. The mediation
session will be approximately 1 to 3 weeks prior to the hearing date. At the
request of a complaining party, disputes may be referred to mediation and
scheduled by the small claims clerks prior to the filing of a small claims
complaint.
The Mediation Process
Mediation of small claims cases is coordinated through the Joint Court Mediation
Project. Mediators are members of the JCMP staff and trained volunteers from the
community.
Due to the nature of the small claims actions, parties who attend these sessions
are generally unrepresented, though counsel is not excluded from the sessions if
they wish to be there.
As the mediation session begins, all participants are encouraged to relate the
issues they believe to be important for consideration, to listen to information
and contributions from other participants, and to respond as appropriate and
desired. During the course of the mediation process, ideas and proposals for
settlement of the case will be exchanged and evaluated by the participants.
When an agreement as to the settlement of the case has been reached, that
agreement is reduced to writing and signed by the parties. The agreement will
then be filed with the court in which the complaint was filed.
OTHER NON-COURT RELATED MEDIATION
In many cases, disputes that have not been filed with the courts in Ashtabula
County may be referred to the Joint Court Mediation Project. Examples of these
may be estate matters, neighbor disputes, disputes between governmental entities
and business disputes. The procedure for handling these disputes is on a case by
case basis. Please feel free to contact the Joint Court Mediation Project with
any questions you may have.
Future mediation developments under consideration for Ashtabula County include:
Ø disputes involving township
trustees: although a few such matters have been referred to mediation
through the court and the prosecutor's office, trustees also have the
opportunity to make direct contact with JCMP for information or to schedule
sessions;
Ø encouraging peer
mediation in local schools: training students to manage conflict and resolve
disputes is a growing effort in Ashtabula County and one that the local bar
association has fostered together with JCMP;
Ø promoting referrals
from local law enforcement: disputes that involve neighbors can often be
addressed effectively in mediation before they escalate to the level where
criminal charges may be filed;
Outreach to individuals and organizations within the county (chambers of
commerce, civic and volunteer groups, school and church associations) can
continue this development while allowing the primary focus to remain a
court-affiliated effort.
