Mediation is a problem solving process in which a neutral professional (the mediator) facilitates communication between parties involved in a probate dispute. The mediator does this by directing communication towards reaching an agreement which will resolve the dispute.
The Probate Court's Mediation Program ("Program" hereafter) typically uses the "facilitative" model for conducting mediation. Using this approach, the mediator does not evaluate or give opinions about the validity of the parties' positions. Instead the mediator's focus is on assisting the parties in negotiations. Occasionally the mediator may utilize the "evaluative" model of mediation. In that model the mediator expresses an opinion about the relative value of a proposal or position.
During mediation all participants have a chance to be heard. Areas of disagreement are discussed one at a time. Various solutions are explored. The mediator may help participants develop options to resolve the issues. The final agreement is made by the participants.
Frequently Asked Questions About Probate Court Mediation
What happens at a mediation conference?
Typically, all of the parties start the mediation in the same room in a joint session. Sometimes, the mediator may choose to keep the parties separated and to not hold a joint session until later in the mediation. In a joint session, the mediator makes introductions and will ask all of the participants to do so as well. The mediator will explain his or her role, what mediation is, cover "ground rules" for the mediation including the limits of confidentiality, and answer questions about process. The mediator asks all participants in the mediation to sign a standard "Mediation Agreement" confirming their understanding of the basic rules. If the parties have specific confidentiality requirements or concerns, these should be addressed at the beginning of the mediation and incorporated into the Mediation Agreement.
Next the mediator will ask each party, counsel and each non-party participant who is involved in the dispute to present his or her views of the issues. Informal "opening statements" allow everyone to hear each other's perspectives.
The mediator may then meet in a private room with the separate interested parties. This is known as a "caucus" meeting. A caucus allows the mediator to ask for an open expression of motives and potential solutions with each side of the dispute. The mediator will not reveal to the other side what is said in caucus unless specifically permitted by the party. The mediator will shuttle between each separate party participant and convey to the others involved specific concerns, interests and offers of settlement. The mediator may use variations of these approaches, including "counsel only" caucus meetings.
What types of cases are mediated in the mediation program?
Any contested matter in the Probate Court may be referred for mediation. The Program's mediators are experienced in mediating cases involving:
Guardianship disputes with divorced parents involving parenting time issues and the care, custody and control of incompetent children;
Guardianship disputes between relatives involving placement, visitation and care of incompetent adults;
Guardianship disputes between the ward and guardian over money and/or living arrangements;
Will contests involving undue influence and competency issues;
Estate disputes concerning the disposition of personal property;
Breaches of fiduciary duty;
Declaratory judgment actions;
Allegations of abuse of agency (Power of Attorney - POA) and accountings;
Fiduciary removal, citation and/or show cause matters;
Wrongful death settlement cases;
Attorney fee disputes arising from probate cases;
Any other contested matter assigned to the Probate Judge or a Probate Magistrate for adjudication;
How do I get my case into the program?
Your case must be filed and pending in Franklin County Probate Court. A self-represented (pro se) party to a probate case or counsel for a party may file a motion with the Court to have the case referred to the Program. If there is agreement by all parties to refer the matter to mediation, that agreement should be noted in the motion. If there is not agreement, then the other parties may file opposition to the motion and the Court will rule on the motion. The Court may also refer a case to mediation on its own motion.
Counsel or a pro se party may call or e-mail the Program Director to discuss whether a case is appropriate for mediation. The case will be evaluated and then referred to mediation if appropriate. Upon acceptance of a case, the Program staff will then schedule a mediation session. Written notice to the parties or their counsel of the time, date and place for the mediation will follow. Court mediations are held at the Probate Court, Franklin County Courthouse, 373 South High Street, 22nd Floor, Columbus, Ohio 43215 unless other arrangements have been made.
If you have a probate-related dispute which has not yet resulted in a case being filed in Franklin County Probate Court but you wish to have the dispute mediated there are two options. You may contact the Program and determine if it can be of assistance. Or you may obtain a private mediator.
Am I required to go to mediation?
If a case is ordered to be mediated by the Court all parties and at least one attorney of the attorneys of record must attend in person unless excused. In the case of an organizational party, a representative of the organization with authority to settle the case must attend with its counsel. Failure to comply with the Court's order to attend and participate in mediation may result in sanctions from the Court. These include but are not limited to being held in contempt of court. Contempt sanctions could result in being ordered to pay a fine, attorney fees, mediator costs or in certain limited situations a party could be ordered to jail. A party may also face dismissal of its claims or defenses for failing to attend.
If you are unable to attend a scheduled mediation due to an emergency or for other good cause, immediately notify your lawyer, or if pro se, notify the mediator and the other parties or their counsel.
How does mediation work?
Cases referred to the Program are assessed to determine if mediation is appropriate. If appropriate the Court will schedule a mediation to be held at the Probate Court. The mediator guides the communication process so that all participants have a chance to be heard. Contested issues are discussed one at a time. Various solutions are explored. The mediator may offer suggestions and help parties develop options to resolve the issues.
The decision to make any agreement is up to the parties.
What is a mediator?
A mediator is a neutral third party appointed by the Probate Judge to help resolve a dispute pending in Probate Court. The mediator will disclose any potential conflicts that he or she knows of at the beginning of the mediation. If you believe that your mediator is not able to act as a neutral, you or your counsel must speak up before the mediation begins and notify the mediator of the concern.
The mediator will have had specific and extensive training in mediation. The mediator has completed an apprenticeship with a more experienced mediator and had practical experience in resolving disputes. The mediator will usually be an attorney who is a court employee or a private attorney who has been approved by the Court to mediate. In some cases an experienced professional who is not an attorney may be appointed as a mediator. This person may or may not be a Court employee.
Parties may also agree to attend mediation with a privately-retained mediator. In that situation the parties must agree to identity of the mediator and make their own cost-sharing and scheduling arrangements.
What are the benefits of mediation?
Mediation is a process that gives the parties the opportunity to resolve their dispute on their own terms, rather than having a judge or magistrate decide for them.
Mediation is a non-public process that can incorporate confidentiality provisions. This is in stark contrast to litigating disputes in a public and open court process.
Settling a dispute through mediation provides certainty of the outcome to the parties. In a court process, there are several levels of review. Even a favorable decision for one party from a magistrate or judge will be potentially subject to at least two levels of appellate review. A "win" might not finalize a case for years. A negotiated agreement achieved through mediation provides finality and a known, mutually acceptable result.
Cases resolved through mediation typically save the parties thousands of dollars in court costs, legal fees and time saved.
Do I need an attorney?
You are not required to have an attorney to participate in mediation. The mediator focuses on helping parties reach agreements but cannot give legal advice. Many parties find it useful to retain an attorney to discuss their rights and responsibilities and to advocate for their best interests. Attorneys help clients understand the law and make informed decisions. Attorneys assist with drafting appropriate language for the Agreed Judgment Entry.
Who may request mediation?
Mediation is available to anyone who is a party to a pending case in Franklin County Probate Court.
What does it cost?
There is currently no charge for the services of a court mediator employed by the Program. If you choose to utilize a privately retained mediator, that fee will be determined by the mediator. It is up to the parties to agree as to how the costs will be apportioned.
How long will mediation take?
The length of a mediation conference depends on the nature and complexity of the issues that are being mediated. Mediation sessions are scheduled to last at least 3 1/2 hours per session. Parties should plan on potentially being at the Probate Court all day. Most mediations which result in an agreement are completed in one day. In complex or contentious cases multiple sessions may be necessary before an agreement is reached.
The mediator has the authority of the Court to terminate a mediation if he or she believes that it is not productive. The mediator also has the Court's authority to order follow-up mediation sessions.
What is a Mediation Statement?
A mediation statement is a document prepared by each party and provided to the mediator in advance of the mediation conference. This document provides the mediator with the parties' perspectives. A mediation statement is a tool which assists the mediator and the parties with focusing the dispute on identifiable issues to be mediated. If the mediator requires a mediation statement, that will be noted in the order setting the case for mediation.
The mediation statement contains a brief factual and procedural history of the dispute, including any related cases, a summary of the legal issues and controlling law, a summary of the party's claimed injury, damages or grievance, the history and status of settlement negotiations and barriers to settlement. The mediation statement may contain any other relevant information the party wishes to provide to the mediator including any suggestions on specific mediation procedures or methods which the party believes may assist in resolving the dispute.
Mediation statements are generally submitted to the mediator one week prior to the mediation conference and served on the other parties. Mediation statements are not filed in Court. An effective mediation statement may attach exhibits, such as a listing of questioned expenses, spreadsheets or photos.
What is a Memorandum of Agreement?
Any agreement that is reached must be voluntary. No agreement will be signed unless all participants are satisfied with all its provisions. Once there is oral agreement to resolve the dispute the mediator will draft a "Memorandum of Agreement." Each party and his or her counsel will be given an opportunity to review the draft and revise it until it meets the parties' needs. Once the Memorandum is approved it is signed by all parties and counsel, filed with the Court and everyone is provided copies.
The Memorandum allows the parties to leave the mediation knowing that they have a legally enforceable agreement with the general terms spelled out. A signed Memorandum is a contract between the parties and is enforceable as a contract. Unless and until adopted into a court order, it is not enforceable by the Court as a court order.
Often there are other documents which will follow the Memorandum of Agreement. These may include a superseding Settlement Agreement and Mutual Release, Agreed Judgment Entries, Dismissal Entries and other legal papers. These documents will be described generally in the Memorandum of Agreement, but will be prepared by counsel and/or the parties after the mediation.
What happens if no agreement is reached?
If no agreement is reached the Court will proceed on the matters pending before it. A party may file formal motions or take whatever legal actions it believes are in its best interests.
There is no penalty to a party for having participated in mediation and not reaching agreement.
Is mediation confidential?
Mediation sessions are not recorded or "on the record." Mediations are not open to the public unlike most court proceedings. With a few limited exceptions nothing said in a mediation conference may be used as evidence in a court proceeding. Subject to the Ohio Mediation statute neither the mediator nor the mediator's notes can be subpoenaed.
If specific confidentiality provisions concerning the mediation are needed, these matters must be discussed and agreed to by all parties in advance or at the beginning of the mediation. Such provisions must be incorporated into the initial written Mediation Agreement signed by all parties.
Exceptions to the privilege are found in Ohio Revised Code Section 2710.05. Exceptions include threats of imminent violence, the commission or concealment of an ongoing crime, testimony in felony proceedings and current child abuse or neglect. Consult an attorney about specific concerns about the scope of privilege and confidentiality.
The only formal report the Court will receive is whether a mediation occurred, where and when it occurred, who participated and whether or not an agreement was reached. If an agreement is reached and it is filed with the Court, the Court will then be made aware of its contents. Subject to the limitations discussed above, the Court will not consider what occurs or is said during a mediation as evidence in any subsequent proceedings.
Can I bring my [New Spouse, Girlfriend, Boyfriend or Children] to the mediation?
Usually the mediation session involves only parties to the case and legal counsel. Under the statute a mediation party is also permitted to bring a "support person." So long as a support person is not disruptive he or she may attend and participate.
Issues concerning who may attend as a non- party should be reviewed with the mediator in advance of the session.
Childcare is NOT available. Please do not bring children to the mediation.
What if I have a specific safety or security concern about attending the mediation?
Concerns about safety or security at the mediation should be brought to the attention of the mediator in advance of the mediation. If a concern develops during the mediation, immediately notify the mediator or any other Court personnel. In an emergency contact the Franklin County PFM Security Division at (614) 525-6000.
If there is a history of domestic violence which is related to the parties or issues involved in the mediation notify the mediator of this concern prior to the mediation start.
Mediation may not be used as an alternative for prosecution or adjudication of domestic violence matters.
What if I have a dispute in another court in Franklin County, how do I get information about mediation there?
Franklin County Municipal Court <http://smallclaims.fcmcclerk.com/home/mediation>
Franklin County Common Pleas Court, GeneralDivisionhttp://www.fccourts.org/gen/WebFront.nsf//wp/Home?open
Franklin County Common Pleas Court, Domestic Relations Division & Juvenile Branch <http://www.fccourts.org/DRJ/main.html >
Franklin County (10th District) Court of Appeals <http://www.tenthdistrictcourt.org/mediation>
Supreme Court of Ohio <http://www.sconet.state.oh.us/Clerk/mediation/default.asp>
Ohio Attorney General's Public Records Mediation Program <http://www.ohioattorneygeneral.gov/PublicRecordsMediation>
What are the legal guidelines for mediation?
The Mediation Program is governed by the following legal authorities:
Uniform Mediation Act, Ohio Revised Code Chapter 2710
Rules of Superintendence for the Courts of Ohio, Rule 16, Mediation
Franklin County Probate Court Local Rule 78.5, Mediation
How can I find out more about mediation?
Web sites related to Alternative Dispute Resolution (ADR) follow:
American Arbitration Association <www.ADR.org>
American Bar Association, Section on Dispute Resolution <http://www.americanbar.org/groups/dispute_resolution.html>
Association for Conflict Resolution <http://www.acrnet.org/>
Association of Family & Conciliation Courts <http://www.afccnet.org/>
Capital University Law School, Center for Dispute Resolution <http://law.capital.edu/DisputeResolution/>
Columbus Bar Association, ADR Committee <http://www.cbalaw.org/committees/substantive/adr/>
Community Mediation Services of Central Ohio <http://www.communitymediation.com/>
National Association for Community Mediation<http://www.nafcm.org
Ohio Community Mediation Association <http://www.ohiocommunitymediation.net/>
Ohio Mediation Association <http://www.mediateohio.org/>
Ohio State Bar Association Dispute Resolution Committee <http://www.ohiobar.org/
Legal Practice in the Probate Court
Legal practice in the Probate Court is restricted by law to attorneys who are licensed by the Supreme Court of Ohio. Due to the complexity of the law and desire to avoid costly errors, most individuals who have filings before the Court are represented by an attorney. Court employees are prohibited by statute from practicing law and cannot give legal advice.