Cleveland Law Library Weblog

Ohio Model Foreclosure Mediation Program Available

The Ohio Supreme Court recently made available a new model mediation program for foreclosure cases. According to the Court's Press Release, the new program is "in direct response to Ohio's rising mortgage crisis." The program includes "best practices, related documents, forms and other resources" that the courts can use or modify. Courts that wish to implement the program can obtain free assistance from the Ohio Supreme Court. The program could help in Cuyahoga County, which is among the top 5 Ohio counties experiencing a rise in foreclosures. Incidentally, Cuyahoga County Common Pleas Court is hiring a Foreclosure Mediator.

Arbitration Agreement Substantively Unconscionable When Remedy Afforded by Law is Denied

Russ Bensing's The Brief Case Blog points out the following case:  Post v. Procare Automotive Services Solutions, Cuyahoga App. No. 87646, 2007-Ohio-2106.  The case struck down an arbitration clause contained in an employment contract.  The employees were suing for age discrimination under Ohio law, and the employer moved to compel arbitration.  The trial court denied the motion to compel arbitration.

The Court of Appeals held that the arbitration clause was substantively unconscionable.  The arbitration clause said that both parties would pay their own attorney fees, contrary to Ohio law, which provides that a plaintiff may recover attorney fees from the defendant in an employment discrimination case.  Additionally, while the employee is limited to binding arbitration, the employer may bypass arbitration for a breach or threatened breach of the non-compete and confidentiality provisions of the employment agreement.  However, the trial court failed to have a hearing to determine whether the arbitration clause was unconscionable, so the appellate court remanded for a hearing.  The appellate court stated that they had already determined that the arbitration clause was substantively unconscionable, but the trial court must decide whether the arbitration clause is procedurally unconscionable.  One must allege and prove a quantum of both substantive and procedural unconscionability in order to have the arbitration clause declared unenforceable. 

One judge dissenting, opining that the trial judge should have granted the motion to compel arbitration.

Thanks to Jack Sargent for the tip.

Posted by Sue Altmeyer

Judge Uses Simple, But Effective, Means to Settle

Cuyahoga County Common Pleas Court Judge David Matia recently used a new technique to settle a lawsuit.  The plaintiff in an automobile accident case demanded $3.7 million for permanent blindness in one eye, emotional distress and loss of enjoyment of life.  The defendants refused to pay more than one million dollars.  Judge Matia handed the parties sealed envelopes, containing papers with the amount "$2,050,000".  If either side disapproved the amount, then they would go to trial.  Both sides agreed to settle the case for $2,050,000.  The lawyers said they had never encountered this type of settlement strategy.   See Judge's Innovative Methods Lead to Settlement of Lawsuit by James F. McCarty, The Plain Dealer, May 17, 2007.

By Sue Altmeyer

New Superintendence Rule Provides Guidance for Mediation

The Ohio Supreme Court has amended Rule 16 of the Rules of Superintendence to provide guidance on local rules for mediation. The rule is effective January 1, 2007.  The current Superintendence Rule 16 provides for mediators in custody and visitation disputes and sets out the qualifications for those mediators.  The qualifications for "allocation of parental rights" mediators is incorporated in the new rule at section (C)(1), and apply to mediators in domestic relations and juvenile courts.  There are special qualifications for mediators dealing with domestic abuse and abuse, neglect and dependency cases.  The new rule also provides required provisions for all mediation rules; provisions for domestic relations and juvenile court mediation; and provisions for child abuse, neglect and dependency meditions. Source: Ohio Judicial Conference FYI.

No Jury Trials, No Public Facilities for Private Judges

The Ohio Supreme Court held that private judges can not preside over jury trials.  The language of ORC 2701.10, which establishes the right of private judges to decide cases, does not allow for jury trials.  Additionally, counties do not have to provide courtroom facilities and court reporters to private judges, but may do so if the parties hiring the private judge pay the costs. See  State ex rel. Russo v. McDonnell , 2006-Ohio-3459; Ohio Supreme Court Opinion Summaries, 7/12/06. Private judges are typically used in high-stakes personal injury and medical malpractice cases.  The plaintiffs in such cases will probably not want to forgo a jury trial.  Ohio Supreme Court Rules Against Private Judges by James F. McCarty, The Plain Dealer, July 13, 2006. 

Stay Pending Arbitration Improper When Some Evidence of Fraud

The Eighth District Court of Appeals held that the trial court erred in granting the defendants' motion to stay pending arbitration.  The record indicated that the arbitration provision was entered into two months before the contract, and was therefore suspect.  The plaintiff spoke very little English when th contract was made.  The plaintiff also alleged that the defendant loan company is a sham operation designed to get business for defendant waterproofing company.  The trial court did not appear to take any of the facts into consideration, in order to satisfy itself that the arbitration provision was valid.  Additionally, the trial court failed to determine the scope of the arbitration clause, ie. to which of the plaintiff's claims the clause should apply.

Judge Michael J. Corrigan dissented, stating that the plaintiff did not present any evidence showing her signature was fraudulent.  The signature appeared to match the signatures on the other documents.

Uniform Mediation Act Effective in October

H.B. 303, the Uniform Mediation Act, goes into effect on October 29, 2005.  See Status Report of Legislation; Uniform Mediation Act, Ohio Legal Research Blog, June 30, 2005.  The Uniform Mediation Act creates a privilege for communications in mediation, and states that mediation communications are not subject to discovery or admissable in evidence.  The act also provides for the confidentiality of mediation communications.  Final Analysis, H.B. 303.