MEDIATE OHIO 

Ohio Mediation Association

www.mediateohio.org

 

A Bi-Monthly Publication         

 

May/June 2007

 

 

President: Jay Patterson (614) 403-3825 E-mail: jmpmediation@ameritech.net

Immediate Past President/Mediate Ohio Editor:  Shirley Cochran (614) 863-4775 E-mail: scochran@insight.rr.com

Vice President:  Phil Dunfee (740) 366-3297 E-mail: phil@phildunfee.com

Treasurer:  Sheri Center (614) 783-7281 E-mail: findingcommonground@yahoo.com

Secretary:  Christy Radigan (614) 855-6926 E-mail: cardigan@insight.rr.com

 

Mark your Calendars for our exciting 2007 meetings!! (First Friday of the even numbered months except our conference or April meeting since it is at a facility for conferences.)

 

June 1, 2007               Mediation and Education: What is new? Sarah Wallis, Director

Education Programs Ohio Commission on Dispute Resolution and Conflict Management.

 

August 3, 2007           TBA

 

October 5, 2007          Mediating with Schools to Meet Needs of Children.  Steve

                                    Polovick, Mediator Ohio Department of Education Office of

                                    Exceptional Children

 

December 7, 2007      Probate and Guardianship Mediation.  Ann L. Snyder,

                                    Magistrate Summit County Probate Court

 

All meetings, except the Annual Conference, to be held at 11:30 AM at the MCL Cafeteria at Westerville and Schrock Roads in Westerville until further notice. (Directions on last page.)

 

Don’t forget—after each OMA bi-monthly meeting, the Case Study Group gets together to discuss a case presented by an OMA member.  If you are interested in a lively discussion of different types of cases, this is the group for you.  For questions or to volunteer to present a case, please contact Susan Shostak (740) 681-1031, or shostak@ohiohills.com

 

Ohio Loses a Champion of Mediation with Passing of Bill Clark of Columbus

            In January the Dispute Resolution field lost a giant with the passing of Bill Clark.  Bill was an original member of the Supreme Court of Ohio’s Committee on Dispute Resolution and a Commissioner for the Ohio Commission on Dispute Resolution and Conflict Management.  He also was active in the Ohio State and Columbus Bar Associations’ Committees on Dispute Resolution.  Bill had been a trial lawyer who left that practice to devote himself entirely to dispute resolution and he will be greatly missed.  Our sympathies go out to Bill’s family.

Ohio’s Uniform Mediation Act (UMA) Survives Its First Attack?

What Happens in Mediation Stays in Mediation.

By Shirley A. Cochran (Originally published in the Columbus Bar Lawyers Quarterly Spring 2007, Page 31.)

            It started when the Corporation contacted the Mediation Center to mediate between two employees, but before that could occur, one was terminated.  Then the Corporation asked the Mediation Center to help resolve conflict in the department of the former employee about avoiding problems like were created in the future.  The Mediation Center’s Director sent out confidential questionnaires to the department’s employees asking for issues to be discussed, met with groups of employees, facilitated the discussion of problem areas and assisted in their resolution of the disagreements and the employees submitted to the Board a plan of action to avoid the issues raised by the situation with the former employee.  Meanwhile, litigation filed in Common Pleas Court pitted Plaintiff employee against the Corporation.  Counsel for Plaintiff issued a subpoena duces tecum for the Mediation Center records and testimony by the Director of the contact with Defendant Corporation.  That is when I got the e-mail in response to the request made when the Uniform Mediation Act (UMA) training took place in 2005, to have anyone subpoenaed contact us to track such incidents and offer help to quash subpoenas if the mediation privilege was attacked.

            The Uniform Mediation Act (UMA) was enacted by Ohio’s legislature as Chapter 2710 of the Ohio Revised Code and became effective October 29, 2005.  It repealed Ohio’s former mediation privilege statute, replacing it with a very broad protection of the confidentiality of the mediation process that is a cornerstone of why mediation works.  In a mediation if people know what goes on in the session will stay there, they are more likely to open up the discussion to what is really behind the dispute and be more willing to brainstorm solutions that may end the problem.  To protect that confidentiality and keep the parties, mediator and nonparty participants from having to testify the UMA provides a privilege personal to each person’s position in the mediation with the mediator being able to refuse to testify about anything that happened at the mediation, with certain exceptions, and to keep others from testifying about what the mediator said during the process.   Specifically, it provides: O.R.C. Section 2710.01 (A) "Mediation" means any process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.

            2710.02 (A) Except as otherwise provided in division (B) or (C) of this section, sections 2710.01 to 2710.10 of the Revised Code apply to a mediation under any of the following circumstances: *** (3) The mediation parties use as a mediator an individual who holds himself or herself out as a mediator, or the mediation is provided by a person that holds itself out as providing mediation.

            2710.03 (A) Except as otherwise provided in section 2710.05 of the Revised Code, a mediation communication is privileged as provided in division (B) of this section and is not subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided in section 2710.04 of the Revised Code. *** (B) In a proceeding, the following privileges apply: *** (2) A mediator may refuse to disclose a mediation communication. A mediator may prevent any other person from disclosing a mediation communication of the mediator.

            In other words, if a person facilitates communication and negotiation between parties in dispute, assisting them in reaching voluntary agreement about the dispute and holds themselves out to be a mediator, the privilege is theirs to assert to keep them from having to testify in discovery or in a proceeding. 

            It appeared fairly obvious that although there were two different instances involved, the Mediation Center staff attempted to facilitate the communication and negotiation between parties in dispute (originally Plaintiff employee and a member of Defendant’s staff; secondly between members of Defendant’s staff in the department), assisted them in reaching voluntary agreement about the dispute (no agreement in the first instance as the session was never held; voluntary agreement in the second instance); the Mediation Center staff held themselves out as mediators, and the Mediation Center staff believed confidentiality is very important to the mediation process. 

Plaintiff’s counsel did not see it that way.  He asserted the Director acted as a consultant and although he never explained what that meant, he felt if this privilege was permitted to stand all sorts of consultants could go into businesses and by using “magic words” keep from having to testify about anything that went on.  A copy of testimony in a deposition of one of Defendant Corporation’s employees was provided as proof that there was no mediation when the meetings with the departmental staff took place, but it was not clear why he thought that it was proof there was no mediation.  A heated telephone conversation took place after the filing of the motion for a protection order where he made accusations of perverting the true meaning of the UMA, but in the end, Plaintiff’s counsel withdrew the subpoena in a formal court filing making the motion moot while reiterating his accusation of frivolousness and perversion of the UMA.  It was not a pretty win; but a win nonetheless. 

            Should anyone be aware of any other subpoenas issued for anyone to testify about a mediation communication, please contact me or Maria Mone Executive Director Ohio Commission on Conflict Management and Dispute Resolution so we can be consistent in responses to attacks on Ohio’s mediation privilege statute.

************

Shirley A. Cochran is an attorney and mediator in Columbus.  She is Immediate Past President of the Ohio Mediation Association and former chair of both the Columbus Bar and Ohio State Bar Associations’ committee on Dispute Resolution.  She was involved in creation of the original privilege statute and the passage of the UMA in Ohio, serving as one of the trainers of mediators through funding from the Supreme Court of Ohio as well as the Commission on Dispute Resolution.

 

Monthly Presenters for OMA by Sandra Fredrick

I wanted to let the members of the Ohio Mediation Association aware that I will be coordinating the monthly presenters for our organization.  I am very interested in any appealing presenters and if you feel you have a new program or approach that you would want to share with your peers it would be appreciated.  Please contact me with ideas as well The following are ways to contact me:  Sandra Fredrick, (937) 225-4099 or I can be reached by e-mail at fredricks@mc.ohio.org I look forward to hearing from you

  

OMA Conference 2007 “Being a Better Mediator” Big Hit

            As the conclusion to Ohio’s Conflict Management Week, the Ohio Mediation Association’s Annual Conference “Being a Better Mediator” was held on Friday, May 11, 2007.  One hundred people came to hear Nina Meierding present on questioning and impasse resolution at the Riffe Center in Columbus.  Participants were the first to receive the new OMA pen and a drawing was for books by Bernie Meyer.  Winners were Barbara Dixon, Judith Thomas, Laura Tonsic, Patti Smith, Terry Wheeler, Joe Palmer, Marcie Vendetti, Joe Natalie, Kristine Hayes, Bonnie Edwards, and Kendal Isaac.  According to the evaluations, the presentation was more than most anticipated and was very well received.  The Better World Award was presented as set out in the following article and the officers gave their reports at the business meeting at lunch.  A good and educational time was had by all.