8 minute read
Mediation: Courtroom 6E Style
MEDIATION:
COURTROOM 6E STYLE
by HON. MARK SERROtt AND PAIgE KOHN
For those that regularly practice civil litigation, mediation can be an excellent alternative to trial. While trial can be more interesting and sometimes necessary, the overwhelming majority of disputed civil cases settle short of getting to a jury.
Indeed, out of the nearly 500 civil cases that were closed on our docket in 2020, we only had one civil jury trial. During that same time, however, Judge Serrott personally oversaw 23 civil mediations, only six of which did not settle. Similarly, Magistrate Mike Thompson, who assists both our docket and that of Judge Chris Brown, conducted 28 mediations, only five of which did not settle. Combined, out of these 51 cases in 2020, we had a settlement success rate of about 80 percent.
Thus, compared to trial, which is riskier, costly and unpredictable, court mediation can become quite attractive for both clients and lawyers. Although the pandemic certainly impeded jury trials and mediations in 2020, we still had only one civil jury trial in 2019. Because trial is so rare, mediation can often become one of the best options for resolving a disputed civil case. Even more, during his 10 years on the bench, Judge Serrott has mediated about 400 cases, settling the vast majority.
Benefits of Mediation
Part art, part science, mediation is a fluid process where pros and cons can be weighed without the overly formal and time-consuming approaches of motions, experts or trial. Mediation can work for a wide variety of cases. While the most common cases involve personal injury, especially vehicular accidents, or breach of contract, we also regularly mediate property, employment, attorney fees/legal malpractice and general business disputes. While it is hard work for the court, clients and lawyers, mediation can be rewarding and provide many benefits over other forms of dispute resolution.
Lowers Costs for All Parties One of the most pressing issues for any civil case is cost. Litigation is very expensive. When attorneys bill hundreds of dollars per hour to resolve discovery disputes, draft motions and conduct depositions, a few hours spent at the court with the goal of settlement can be quite cost-effective. Unlike private mediation, which can cost $350 an hour or more, court mediation does not cost either party anything. Further, the court does not play messenger “games” between the parties, which reduces the time spent on unnecessary
posturing and gamesmanship. Instead of drafting a costly motion for summary judgment that is difficult to win, sometimes it makes sense to go directly to mediation. Other times, of course, motions can serve as leverage.
Provides A Reality Check for Clients and Lawyers The court is in a great position to provide a neutral but educated perspective to clients, and even lawyers, about the strengths and weaknesses of their case. Lawyers do not always want to give their clients bad news, which makes the court’s input valuable. Sometimes, clients listen to a judge or magistrate more than their own lawyers. Often pointing to the jury box, the court can provide insight into how juries make decisions and what factors influence their judgments. A client might have a decent legal position, but may not be the best witness, which could alienate jurors. The cost of retaining an expert or going to trial may not be worth the amount that could be saved by settling. Even if the matter does not settle that day, the session is often meaningful to encourage movement on the case as a whole, and these cases frequently settle soon thereafter based upon the court’s initial involvement.
Acknowledges Emotions and Client Expectations At the heart of many civil legal disputes can be strong emotions and expectations, which can make cases difficult to resolve. Unlike trial, however, mediation provides an open dialogue about the more personal aspects of litigation. Emotions and expectations can be heard, but also assessed in light of the bigger picture. Sometimes clients just want to be heard by the judge. A client could have been wronged by a long-time business partner; a former employee who worked years for their company could feel unfairly forced out; or neighbors could be having an escalating spat about a fence, leading to anger and mistrust. In any of these cases, after acknowledging these real emotions exist, the court often encourages clients to “make a business decision.” The court will also try to
help clients understand the physical and emotional toll of litigation on their personal lives. Finally, whereas clients have to sit quietly through week-long trials, mediation encourages regular client input.
How Lawyers and Clients Can Be Effective at Mediation
Different Perspective In many ways, mediation is different than other litigation techniques like oral argument or trial. While the latter approaches are more adversarial and aim for victory, mediation is a negotiation where both sides stand to gain and lose more equally. The process acknowledges muddled factual circumstances or questionable legal defenses, but does not pick a winner. As a result, mediation is often more effective when lawyers and clients come to court with a negotiating viewpoint rather than the traditional argumentative perspective typical of other aspects of civil litigation.
Adequate Preparation Coming to the mediation prepared is crucial. A key aspect of such preparation is a well-written and organized mediation statement, which is kept confidential and not shared with opposing counsel in our court. Beyond a brief summary of the dispute, the most vital sections include the status of the negotiations and strengths and weaknesses of the case. It is especially important to share the last demand, realistic statement regarding settlement, client expectations and potential barriers. The exercise of writing the mediation statement goes beyond assisting the court; it can force both lawyers and their clients to realistically evaluate the case. As a result, it is wise to take sufficient time to draft the mediation statement and not view it as just a cursory task.
How Mediation Works in Our Court
Basics In Franklin County Common Pleas Court, mediation can be pursued either voluntarily or through a mandatory conference ordered by the court pursuant to Loc. Rule 105. In our courtroom, mediations generally last between two to three hours, sometimes more if the case is complex. The sessions are most effective when the parties are open to settlement and provide good mediation statements, which the court carefully reviews before starting the mediation. We prefer both clients and attorneys to be present in person, but both Magistrate Thompson and Judge Serrott have been conducting mediations on Zoom videoconference technology because of the pandemic. Judge Serrott finds in-person mediations more effective because of the personal nature of many cases, and his success rate is higher than mediations via videoconference.
Considerations We begin in the courtroom and explain Judge Serrott’s broad experience with mediations and what to expect. Each side is then caucused into a separate room, where we discuss the case with the parties individually. While financial issues and costs are often the prime leverage points, sometimes a case benefits from thinking outside the box and developing non-financial solutions. We also discuss levers such as the likely outcome, jury verdict exposure and significant factual or legal points. Further, there are important non-legal considerations that can greatly influence an outcome, which are the goals, emotions and needs of the parties.
Role of the Court We strive to be personable and objective, but also a realistic third party that helps both clients and lawyers carefully evaluate their case. Given Judge Serrott’s experience of overseeing approximately 100 criminal and civil trials, along with about 400 mediations, for the past 10 years at Franklin County Common Pleas, the court has a great deal of insight as to what works and what does not. Such experience provides a good sense of what is reasonable for a case, whether it be a car accident or a complex business dispute.
Concluding Thoughts
While mediations are not easy, they offer many benefits for both lawyers and clients. They are low-cost, more personalized and less formal. Clients also have the opportunity to vent their frustrations, expectations and, most importantly, have their “say.” This form of resolving disputes is effective because it balances the legal aspects of a case with the emotional needs of clients, which often leads to a more just result for all sides. Mediation acknowledges that disputes and litigation are challenging, but presents a more personal forum to sort through these disputes. The goal is not winning, but achieving a fair outcome. It permits parties to evaluate their case with less pressure of legal formalities, and encourages making a business decision. Ultimately, mediation often works and is an underutilized function that the court can provide. Clients have often thanked us afterwards, noting how helpful the process was for them. We encourage you to consider it.
i On the Franklin County Common Pleas Court website, Judge Serrott’s webpage provides a list of information to include for an effective mediation statement. ii An alternative to court-ordered mediation is compulsory arbitration under Loc. R. 103, which is rarely used, but can also achieve similar aims to mediation.
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100+YRSINCENTRALOH EXPERIENCEMATTERS
Hon. Mark Serrott
Franklin County Court of Common Pleas mark_serrott@fccourts.org
Paige Kohn, Esq.
Franklin County Court of Common Pleas paige_kohn@fccourts.org
