Cleveland Law Library Weblog

Cuyahoga County Common Pleas Dispute Resolution Department No Longer Offers Foreclosure Mediation

If you had not already heard, the Cuyahoga County Common Pleas Court Dispute Resolution Department no longer offers foreclosure mediation. The Dispute Resolution Department was established about 40 years ago, and judges can still refer cases for arbitration, mediation, and business mediation in non-foreclosure cases. To contact the Dispute Resolution Department or for more information, call 216-443-8504.

Ohio Board of Professional Conduct Issues 2 Advisory Opinions

On June 8, 2018, the Ohio Board of Professional Conduct issued 2 Advisory Opinions. Opinion 2018-02 discusses the extent to which out-of-state lawyers can represent Ohio lending institutions in a temporary basis.  The Syllabus of Opinion 2018-03, which addresses settlement agreements, states that:

"A settlement agreement that prohibits a lawyer’s disclosure of information contained in a court record is an impermissible restriction on the lawyer’s right to practice. A lawyer may not participate in either the offer or acceptance of a settlement agreement that includes a prohibition on a lawyer’s disclosure of information contained in a court record. A lawyer is not required to abide by a client’s decision to settle a matter
if the settlement is conditioned on a restriction to practice and must withdraw from the representation."

ABA Declares October 16-22 as Mediation Week

In addition to Pro Bono Week (Oct. 23-29, 2011) that the ABA started a few years ago, the ABA has now dedicated another week in October, from October 16-22, as Mediation Week. This year's theme is "Civility and Civil Public Discourse," and the ABA has stated that:

"Lawyers and mediators play a special role in promoting civility and civil public discourse.    In their use of mediation and in other endeavors, lawyers can encourage  and model the use of civility, non-disparagement, dialogue, problem solving, and other collaborative  practices by other lawyers, public officials,  community leaders  and members of the general public."

Cuyahoga County Pobate Court to Offer Mediation Beginning in September

Beginning in September, the Cuyahoga County Probate Court will be offering mediation services. This service will be available upon request or by court order. According to the information provided by the Court, the Court can either assign a magistrate who has not previously worked on a case or an attorney to serve as a mediator. Eligible attorneys must possess 5 years of probate experience and complete a 12-hour mediation training program. Under this new program, the Court will pay $700 toward the first 4 hours of mediation, and the rest is either up to the parties or paid as outlined in a court order. The Court is creating a list of attorneys who are interested in serving as mediators, and interested persons can send a letter of interest with their experience and compensation rate to: Magistrate John Homolak, Court Administrator, Probate Court, 1 Lakeside Ave, Room 113, Cleveland, Oh 44113.

Cuyahoga County Domestic Relations Court Now Offers Mediation in Pending Cases Involving Children

The Cuyahoga County Domestic Relations Court has partnered with the Cuyahoga County Department of Justice Affairs, Office of Mediation to offer mediation in pending cases involving children. This new process was instituted under Local Rule 32, which provides that mediation can be ordered on the court's own motion or at the request of either or both of the parties. The Court's news release describes the services mediation is intended to provide and the outcome it is intended to achieve as follows:

"Mediation is a process in which parents develop their own parenting plan with the help of the mediator. It is a method of problem solving without the financial and emotional costs often associated with litigation. The mediator is a neutral third party who encourages parents to discuss the issues concerning their children and help them reach an agreement. The parents control the outcome and they can communicate with each other directly, in a safe environment. This reduces hostility and helps foster a rational discussion. The outcome of the mediation is limited only by the nature of the problem and the ability of the parents to work together for their child’s best interest."   

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.