The decision to mediate a disputed matter can occur prior or subsequent to the filing of a legal action. The parties can agree to the mediation, or a judge can order the parties to submit the matter to mediation. It should be noted that certain states may have statutory provision regarding mediation. A copy of the relevant statutory provision of Ohio is included below. The following summarizes the steps followed to facilitate the process.

• Parties agree to mediation {prior or subsequent to a lawsuit being filed};

1. The parties and/or their legal representatives agree to submit the matter to mediation, before a mediator of their choosing.

2. The parties and/or their legal representatives contact the individual chosen to mediate the case, with a request to institute the process.

3. The mediator circulates calendars to all parties, with a request to indicate available dates. Included with the calendars, is a letter setting forth certain requirements and guidelines. A sample letter reads as follows:

November 27, 2000

Attorney Jones
Xxxx
Xxxx

Attorney Smith
Xxxx
Xxxx

RE: Private Mediation

Dear Counsel:

Thank you for the opportunity to serve as private mediator in the above referenced matter. The mediation has been scheduled for [date & time] at the [location].

Following are the relevant requirements regarding the mediation:

1) Please forward a completed mediation statement to my office prior to the mediation-attach supporting documents if you believe they would be helpful. I have attached a copy of the statement for you to use. Provide opposing counsel with a copy as well.

2) Please arrange to have your clients and/or representative attend the mediation. If alternate arrangements are necessary, please advise me and discuss the matter with opposing counsel for their approval.

3) I am including a copy of Section 2317.023 of the Ohio Revised Code. The mediation will be conducted in accordance with the provisions of this statute, and by agreeing to the process, the parties agree to be bound by the statutory provisions.

4) Cost for the mediator will be [fee-normally between $90-$150] per hour for each party, unless otherwise agreed to by the parties.

Again thank you for the opportunity to assist you in this matter.

Sincerely,

Jeffrey S. Wilkof

4. The parties return their calendars, and the mediator notifies the parties of the time and place for the mediation.

5. The mediation is conducted with all necessary parties present. In the event of a resolution, the settlement is journalized on a form prepared by the mediator at the conclusion of the mediation, and is signed by all parties and representatives.

• Parties are ordered to mediation during a pending lawsuit:

Many states have ADR {Alternative Dispute Procedures} in place at the state or local level, that dictate the procedure for cases being submitted to such ADR methods as mediation or arbitration. Additionally, provision of those processes may be statutorily addressed. The following is the relevant Ohio statute regarding mediation, and applies to cases being mediated both within and without the context of a lawsuit.

PAGE'S OHIO REVISED CODE ANNOTATED Copyright © 2000 Anderson Publishing Company

***THIS DOCUMENT REFLECTS CHANGES RECEIVED THROUGH JUNE 22, 2000***

TITLE XXIII [23] COURTS -- COMMON PLEAS CHAPTER 2317: EVIDENCE [COMPETENCY OF WITNESS AND EVIDENCE] [§ 2317.02.03] § 2317.023 Disclosure of mediation communication.

(A) As used in this section:
(1) "Mediation" means a nonbinding process for the resolution of a dispute in which both of the following apply:
(a) A person who is not a party to the dispute serves as mediator to assist the parties to the dispute in negotiating contested issues.
(b) A court, administrative agency, not-for-profit community mediation provider, engage the mediator.
(2) "Mediation communication" means a communication made in the course of and relating to the subject matter of a mediation.

(B) A mediation communication is confidential. Except as provided in (C) of this section, no person shall disclose a mediation communication in a civil proceeding or in an administrative proceeding.

(C) Division (B) of this section does not apply in the following circumstances:
(1) Except as provided in division (H) of section 2317.02 and division (C) of section 3109.052 [3109.05.2] of the Revised Code, to the disclosure by any person of a mediation communication made by a mediator if all parties to the mediation and the mediator consent to the disclosure;
(2) To the disclosure by a person other than the mediator of a mediation communication made by a person other than the mediator if all parties consent to the disclosure;
(3) To the disclosure of a mediation communication if disclosure is required pursuant to section 2921.22 of the Revised Code;
(4) To the disclosure of a mediation communication if a court, after a hearing determines that the disclosure does not circumvent Evidence Rule 408, that the disclosure is necessary in the particular case to prevent a manifest injustice, and that the necessity for disclosure is of sufficient magnitude to outweigh the importance of protecting the general requirement of confidentiality in mediation proceedings.

(D) This section does not prevent or inhibit the disclosure, discovery, or admission into evidence of a statement, document, or other matter that is a mediation communication but that, prior to its use in a mediation proceeding, was subject to discovery or admission under law or a rule of evidence or was subject to disclosure as a public record pursuant to section 149.43 of the Revised Code. This section does not affect the admissibility of a written settlement agreement signed by the parties to a mediation or the status of a written settlement agreement as a public record under section 149.43 of the Revised Code.

HISTORY: 146 v H 438. Eff 7-1-97; 146 v H 350, § 14, Eff 1-27-97.

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