David L. Doyle
Chief District Mediator
LOC.R. 5 PREHEARING CONFERENCE PROCEDURES
Pursuant to App.R. 20 and Loc.R. 5, the Court conducts appellate mediation conferences on appeal to encourage and facilitate the settlement and resolution of civil and administrative appeals early in the appellate process. Cases are scheduled by the Court and may be scheduled at the request of one (1) or more parties or counsel. The following are some commonly asked questions presented for your assistance.
- What cases are eligible for Loc.R. 5 appellate mediation conferences? Loc.R. 5 provides that all civil and administrative appeals are eligible for a mediation; however, only selected or nominated appeals are mediated.
- How are counsel advised that their appeal has been selected for a mediation conference? Counsel receive a Notice of Loc.R. 5 Conference advising them of the date and time of the conference, whether it is to be held by telephone or in person, and how they and their clients are to prepare.
- Why are mediation conferences scheduled shortly after the notice of appeal is filed? Loc.R. 5 mediations are held shortly after the notice of appeal is filed so that resolution of the appeal or settlement of the case (or global settlement, if counsel desire) can be explored prior to the parties incurring further cost and expense on appeal. It has been the experience of the office that the filing of briefs dramatically reduces the likelihood that the parties will be able to reach a mutually agreed upon resolution.
- Are the Loc.R. 5 appellate mediation conferences conducted in person or by telephone? When all participants reside in the Columbus metropolitan area, Loc.R. 5 conferences are typically held at the Courthouse. However, mediation conferences are often conducted by telephone if one of the participants resides outside of the metropolitan area or other factors dictate that counsel would be better served by a telephone conference. Experience shows that telephone mediation conferences have been equally effective at fostering resolution of appeals. The telephone conferences are initiated by the Appellate Mediator who has six (6) telephone lines. It is important to note that telephone mediation conferences are afforded the same consideration as in person mediation conferences.
- Are the times on appeal suspended upon notice of a Loc.R. 5 conference? No. The times on appeal continue as usual including briefs. However, upon motion filed with the clerk of the Court of Appeals on the 23rd floor (614) 525-3624, the Court will consider extending the times on appeal in short increments if conducive to settlement and helpful to the parties http://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/ . Do not prepare entries with your motion; the Court drafts its own. You may also follow-up on the status of any motion by contacting Mr. Doyle's Administrative Assistant, Christina Adkins, at (614) 525-6083.
- What if I have an unavoidable conflict with the scheduled date and time? If you need to reschedule because of a previously scheduled court appearance, planned vacation or unforeseen emergency, please call Christina Adkins at (614) 525-6083. Alternative dates and times will be provided to you. It is the duty of the rescheduling attorney to contact all other counsel on the case to arrive at a mutually agreeable date and time and then to promptly notify Mrs. Adkins of the rescheduled date and time. Rescheduled cases are typically held within fourteen (14) days of the originally scheduled conference. Rescheduling a case more than once is looked upon with great disfavor. Appellate matters take precedent over trial court matters.
- Who conducts the Loc.R. 5 appellate mediation conferences? In October 1989, the court appointed David A. Doyle, Esq., to administer the settlement and appellate mediation procedures and to conduct the Loc.R. 5 conferences. Since 1989, Mr. Doyle, as Conference Attorney & Appellate Mediator, has mediated over 5,000 cases encompassing a broad range of civil and administrative cases with a dismissal rate of about 54%. Mr. Doyle also has considerable experience as a trial court mediator at the state trial court and federal district court levels since 1990.
- Is participation in Loc.R. 5 mediation conferences optional? No. Participation in Loc.R. 5 appellate mediation conference is mandatory whether the appeal was scheduled by the Court or at the request of a party. However, counsel may contact Mr. Doyle by telephone or e-mail to discuss the issue of cancellation, though it is rarely granted, even where all sides agree to cancel. See, firstname.lastname@example.org.
- Must each party's lead attorney attend mediation? Yes. It is critical that each party be represented at the Loc.R. 5 conference by an attorney who is not only conversant with the case, but is the attorney on whose advice the party relies. If more than one attorney meets these criteria, either one may represent the client in the Loc.R. 5 mediation conference. This does not apply to pro se litigants.
- Are the parties required to attend the mediation? If The Notice indicates that client attendance is mandatory, the clients must be present with counsel at the appellate mediation conference. If clients are not required to attend the initial conference, parties or their designated representatives with full settlement authority shall, at minimum, be available by telephone for the duration of the mediation to facilitate the settlement discussions. However, parties are often required to participate in a private caucus at the initial session or at a follow-up mediation session with their counsel and Mr. Doyle, as Appellate Mediator, in the context of the ongoing mediation. Mr. Doyle encourages active client participation when helpful or conducive to the settlement discussions.
- How long do the mediation conferences last? On average, the mediation conferences typically last approximately sixty to ninety minutes. It is not unusual, however, for the mediation conferences to go beyond one (1) hour, and Mr. Doyle will afford counsel and the parties as much time as necessary to accomplish the purposes of the mediation, but likewise is considerate of the time constraints and other commitments of counsel and the parties beyond the 60-90 minute mark.
- What preparation is required of counsel? Counsel are to consult with their clients prior to the Loc.R. 5 mediation and obtain the requisite settlement authority. Counsel will be asked about the range of outcomes on appeal irrespective of the degree of probability of that outcome. Counsel are to be prepared to fully explore in good faith all options, avenues, and possibilities which might lead to a mutually acceptable resolution of the case. Counsel should also review their factual and legal positions prior to the mediation. 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.
- What takes place at the Loc.R. 5 mediation conference? While Loc.R. 5 mediation conference procedures are official proceedings of the Court, they are conducted in a relatively informal manner. Discussions are typically conversational rather than argumentative. Initially, procedural issues and questions are addressed. The primary substantive issues and anticipated assignments of error are then discussed in the context of appellate standards of review. Thereafter, resolution is actively explored through the mediation process. The mediation focuses 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. Mr. Doyle, as Appellate Mediator, typically meets jointly with counsel and the parties and then meets separately in caucus with each side in his role as mediator. On appeal, unless prior discussions after the filing of the notice of appeal, it is the appellant or appellants' responsibility to put forth the initial demand, offer, or proposal to resolve the appeal and underlying case, if necessary. He may shuttle between the parties and their counsel or meet with counsel only. Settlement demands, offers and proposals are thoroughly discussed. Resolution may or may not be reached during the initial conference. Following an initial conference, Mr. Doyle typically initiates further discussions by telephone, letter or e-mail or will schedule follow-up conferences or require ongoing status reports, if helpful. Counsel will negotiate directly as well throughout the pendency of the appeal. By the conclusion of the Loc.R. 5 mediation conference process, the parties have either reached a resolution or have identified the remaining obstacles and areas of impasse preventing resolution on appeal.
- What are the roles of the Conference Attorney & Appellate Mediator in the Loc.R. 5 appellate mediation process? As indicated above, procedural questions and issues are addressed including potential jurisdictional problems and then the anticipated assignments of error and primary legal issues are raised and discussed. Mr. Doyle then serves as a mediator and he may perform a variety of roles as may be conducive to the settlement process. He may act as a facilitator, moderator or intermediator. He may act as a sounding board or as a reality check or even cajole, test or challenge positions of counsel and the parties, typically in a private caucus, but sometimes jointly. Typically, however, he will encourage active yet neutral analysis rather than arguments and accusations. He will assist as needed in the generation of possible options for resolution. As mediator, he will work closely, as needed, with counsel and the parties in facilitating impasse negotiations and encouraging collaborative problem-solving in the search for mutually agreeable terms. Throughout the appellate mediation conference proceedings, Mr. Doyle, while active in the discussions and questioning, remains impartial, but may challenge, in his experience, tenuous, unreasonable or bad faith positions and proposals.
- Are Loc.R. 5 mediations confidential and are the mediation communications privileged? The Tenth District's Loc.R. 5(D)(3) states that except to the extent disclosed in a prehearing conference order, "information contained in statements or comments made during prehearing conference shall be regarded as disclosed solely for purposes of settlement negotiations, and shall neither be treated as admissions, nor as limiting the disclosing party in presenting or arguing that party's case." In addition, the enacted Uniform Mediation Act (UMA) effective October 29, 2005, is set forth in R.C. 2710.01 to R.C. 2710.10 and addresses, along with other matters, the issues of confidentiality and privilege. R.C. 2710.07 states that, "Except as provided in sections 121.22 and 149.43 of the Revised Code, mediation communications are confidential to the extent agreed by the parties or provided by other sections of the Revised Code or rules adopted under any section of the Revised Code." The Conference Attorney & Appellate Mediator, Mr. Doyle, will not report or communicate the substance of any settlement discussions or "mediation communications" to this or any Court. The Uniform Mediation Act also addresses the issue of privilege referring to when mediation communications of mediation parties, the mediator, and nonparty participants, cannot be discussed or testified to in a subsequent court proceeding. Counsel are encouraged to review the entire Uniform Mediation Act R.C. 2710.01 to R.C. 2710.10 prior to your appellate mediation.
- Do judges of the Court of Appeals know what transpires at Loc.R. 5 mediation conferences? The Court does not know what substantively has transpired at the appellate mediation conference and any settlement discussions or negotiations which have taken place are not revealed to the Court. The appellate mediation process provides appellate counsel and the parties with a minimal risk and low cost environment in which counsel and the parties can actively explore options and avenues of resolution which are consistent with the best interests of their clients. If no agreements are reached, the case is absolutely unaffected and those in the Court's decisional process that might follow know nothing about the substantive mediation discussions.
- How can I best use the Loc.R. 5 mediation conference to benefit my client? Recognize that the Loc.R. 5 appellate mediation conference procedures provide a short window of opportunity to achieve a favorable outcome consistent with your client's overall interests and risks. While maintaining your role as an advocate, understand that the appellate mediation conference is essentially cooperative rather than adversarial. Take advantage on appeal of the opportunity to talk constructively and confidentially with counsel for the other parties. Listen closely to what the other participants have to say. Try to be as candid as possible without posturing. Be persuasive yet open to persuasion. Keep in mind that your views and the views of opposing counsel about the case may change during the course of the appellate mediation process which may lead to additional avenues and options for resolution and mutual gain. Likewise, a parties' economical and personal circumstances may change over the months of an appeal. In light of the above, be prepared to both initiate demands, offers and proposals as appellant's counsel and be prepared to specifically accept, respond or counter-offer as appellee's counsel with a supporting rationale.
- How can a Loc.R. 5 mediation conference be requested? Counsel may request a Loc.R. 5 mediation conference by contacting the Conference Attorney & Appellate Mediator, David A. Doyle at the Court of Appeals, Tenth Appellate District, Franklin County Courthouse, 373 S. High Street, 24th Floor, Columbus, Ohio 43215, telephone No. (614) 525-4023, e-mail (email@example.com) or fax (614) 525-7249. Requests for mediation conferences can also be directed to Court Administrator, Douglas W. Eaton, at the same address or telephone number (614) 525-3580. Further, counsel may request a mediation by formal motion filed with the Court. Counsel will be advised by Notice should a mediation conference be scheduled, but the times continue as usual on appeal and are not tolled or suspended. Extensions of time for briefs, etc. must be sought by motion filed with our Clerk's office.
RULE 5. PREHEARING CONFERENCE PROCEDURE
- Applicability. This rule applies to all civil and administrative appeals in this court.
- Transmission of Documents from Clerk of the Trial Court. Upon the filing of a notice of appeal, the clerk of the trial court or the administrative agency shall forthwith transmit a copy of the notice of appeal to the clerk of the court of appeals, together with a copy of: (a) all filings by appellant pursuant to App.R. 9(B); (b) the docket entries; (c) the docketing statement; (d) the judgment or order sought to be reviewed; and (e) the opinion, if any, and findings of fact and conclusion of law, if any.
- Response by Appellee or Cross-Appellee. Within seven days after service of appellant's or cross-appellant's docketing statement, each appellee may, at his option, file with the clerk of the court of appeals, with service on all other parties, four copies of a statement report not to exceed two pages, containing any information which may assist the court and parties in clarifying the issues or settling the appeal or cross-appeal.
- Civil and administrative appeals to which this Rule applies shall be reviewed by a staff attorney known as a conference attorney, to determine if a prehearing conference, pursuant to App.R. 20, would be of assistance to the court or parties. Any party may request a prehearing conference; however, the request need not be granted.
- If an appeal is selected for conference, upon seven days notice from the conference attorney, the attorneys, and the parties if requested, shall attend a prehearing conference before a judge, or the conference attorney, to be held within fourteen days after the filing of the notice of appeal, or as soon thereafter as practicable, to consider the possibility of settlement, the simplification of issues, and such other matters as may aid in the disposition of the proceedings by the court. Any case selected for conference which has been assigned to the accelerated calendar shall be removed from the accelerated calendar and assigned to the regular calendar.
- Except to the extent disclosed by the prehearing conference order entered pursuant to Section 5 of this rule, information contained in statements or comments made during the prehearing conference shall be regarded as disclosed solely for purposes of settlement negotiations, and shall neither be treated as admissions, nor as limiting the disclosing party in presenting or arguing that party's case.
- Prehearing Conference Order. At the conclusion of the prehearing conference, the judge, or the presiding judge upon recommendation of the conference attorney, may enter an order setting forth the actions taken and the agreements reached, which order shall govern the subsequent course of proceedings, unless modified by the court.
- Non-Compliance Sanctions. If a party or attorney fails to comply with the provisions of the rule or the provisions of the prehearing conference order, the court may assess reasonable expenses caused by the failure, including attorney fees; assess all or a portion of the appellate costs; or dismiss the appeal.