Mandatory Mediation: A Remedy for Non-Cooperative Behavior?

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A failure to cooperate

By: Donald L. Swanson

Two local municipal authorities in Ohio are not cooperating.  So, a local judge orders them to mediate the dispute between them, according to this news report from The Athens Messenger.

The Facts

One municipality, a local school district, wants to connect a proposed wellness center into the sewer system of the local village.

The local village says it can’t allow the proposed sewer connection, unless the village is able to annex the proposed wellness center.

Apparently, the school district is opposed to annexation but wants the sewer connection anyway, so it sues the village to get its way.

The Court’s Ruling

The village files a motion to dismiss the school district’s lawsuit.

Judge Patrick Lang of the Athens County Common Pleas Court rules on the motion to dismiss in this fashion:

–The lawsuit “warrants dismissal”; but
–A mediator is appointed instead, with a requirement that the parties have at least one mediation session, to be scheduled as soon as possible; and
–The dismissal ruling is deferred to allow time for the parties to pursue a mediated settlement.

The Judge’s rationale for this ruling includes these factors:

–If a final judgment is made, the parties might appeal and continue the legal fight for a year or more.
–“The parties may wish to post-pone or alleviate the need for a final judgment by mediating or negotiating a solution to this dispute,” noting that there may be other plausible courses of action.
–The local school district and the village must “co-exist” in a small community.
–“If there is any consensus that a Wellness Center would benefit the community at large, perhaps the parties can investigate feasible methods for making the center a reality rather than litigating for months or years to come.”

These are wise judicial words and a wise course of action.

A Translation

Here’s a translation of how I read the Judge’s ruling:

“C’mon folks!
We all need to do what’s best for our small community.
Stop this ridiculous fighting and start doing what you are supposed to be doing!”

Good for the Judge!

Follow-Up

While the foregoing is a good try (and a commendable effort) by the Judge, fighters are gonna’ fight.

So . . . the legal fight between these small-community authorities continues, according to this news article dated July 4, 2016.

–The ordered mediation does not occur.

–Instead, the legal fight on the same issue has moved out of the court system and on to the Ohio EPA.

Go figure.

COMMENTS AND RESPONSES TO ARTICLE — LINKED IN  8-29 to Present

Mark B. Baer Mandatory “mediation” is required in California after someone files a Request for Order Regarding Child Custody and/or Visitation. It bears mentioning that 70% of those matters are resolved in that post-filing, “mediation, after the parties stated derogatory things against each other in their respective pleadings.

I propose that more such cases settle when attempted pre-filing and that they don’t unnecessarily further damage their ability to co-parent their children.

In other words, don’t poo poo mandatory mediation.

           Donald Swanson Thanks for your insights, Mark.

  • John (Norval) Settle I’ve participated in many “mandatory” mediations, including ones (a) where a judge has referred parties to a mandatory engagement with a mediator before continuing in court, and (b) where a boss has sent subordinates to mediation. Both have an overtone of coercion, I suppose, but once they’re in the room with me, in the vast majority of cases, we quickly get beyond that into discussing the drivers of the parties’ conflict and the magic of mediation takes over.

    Age E. (Aga) Smies Away from the Judge, possibly without their lawyers present, people may actually communicate and realize the potential savings. Of course, in family cases, the realization that they will remain parents no matter what may actually sink in.

    Gary Kettring In Florida, the parties are required to make an appearance at mediation. in court ordered cases. One can not be forced to mediate.
    Once the opening statement has been made by the mediator, the parties have fulfilled their obligation to make an appearance and can leave. At that point a court report of “no agreement ” is issue.
    No other comments are made or necessary.

    John Woodward It sounds to me, Gary Kettring, like the Florida system represents a triumph of form over substance. A formal appearance before a mediator with the pre-determined intention to leave immediately after the mediator’s opening statement is hardly an engagement with the process. Nor, I suggest, would it add anything to the litigation except an entirely unnecessary additional step so that the parties can pay lip service to “attempted” mediation.

    ELOM CHRISTIAN ALEKE ESQ Dear gentle men, needs a help, where can i study ” VICTIM OFFENDER MEDIATION as LLM research work?

    John (Norval) Settle But it can work, John Woodward. In Virginia, by law, a judge can order parties to a session with a mediator, to hear an explanation of mediation (not to mediate per se) — the parties can then CHOOSE to stay & try mediation or go back to court. Often,they choose to mediate — for all the good reasons we know and sometimes merely because “why not?” or they don’t want to annoy the judge. Some judges refer many cases, some a few, some rarely. But it is an opportunity.

    Amb.Lawrence Olufemi Obisakin, BA,BBA, MA,Ph.D Interesting developments. I know that generally, mediation is cheaper than litigation and it may also led to a more. Lasting solution.

    Lawrence Kolin In 15 years of mediating in FL, never had party walk after openings. I suppose our system has matured to point of parties engaging rather than resisting process– and foregoing advocacy for problem solving to fashion self-determined resolution with mediator’s help.

    Baltazar Ordonez One basic principle remains to be voluntary mediation. Coerce mediation may work well but at the end, agreements may never be as successful as when parties volunteer to engage in mediation. As example, in divorce cases mediation agreements are often broken when the parties are force to mediate. Perhaps in certain conflicts, coerced mediation may find a way to succeed but rough edges will persevere.

    Max Kimber SC We really need some good data on this important issue.Is there any?? I always like to know why a party says they do not want to mediate–and explore that first.It is particularly important if they say ” I want my day in court”–why is that??what if you don’t get what you want/need– eg vindication/revenge?Of course,the views of their lawyers(trusted advisors?) will often be critical to the outcome of this inquiry. know that Bill Hewlett–a very senior family law mediator, has been exploring the reasons why people say “I want my day in court”–and sees that family of origin issues loom large. I think that while it is true that you can lead a horse to water…I find that when the water is in sight and it is hot ,the prospect of a drink becomes more attractive–and it becomes voluntary PS:much better than a dry old argument in court!

    Donald Swanson The U.S. Sixth Circuit Court of Appeals has a mandatory mediation rule. Cases to be mediated are selected “at random” because they found that “cases that appeared to be amenable to mediation were not actually more likely to settle than any other case.” The Sixth Circuit’s mediation program “settles about 40% of appeals that participate in mediation.” This is according to an April 6, 2012 article on the Sixth Circuit Appellate Blog.

 

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