The Ohio State University Moritz College of Law March 2010
ADR @ Moritz

JDR Symposium Recap: Codifying Mediation 2.0

On February 5, 2010 the Ohio State Journal on Dispute Resolution held their 25th Symposium: “Codifying Mediation 2.0.” The symposium was a day-long series of roundtable discussions that included participants who brought different views and insights to the conversation about dispute resolution and the courts.

The participants included professors from The Ohio State University Moritz College of Law: Sarah Cole, Ellen Deason, Christopher Fairman, Nancy Rogers and Charles Wilson; Scott Hughes, professor at the University of New Mexico School of Law, currently a visiting professor at the University of Georgia School of Law; The Honorable Sandra Beckwith, Judge for the United States District Court for the Southern District of Ohio; Robert Rack, Chief Mediator for the United States Sixth Circuit Court of Appeals; John Pinney, partner with Graydon, Head & Ritchey LLP; Arizona State University Sandra Day O’Connor College of Law Professor Dr. Roselle Wissler; Hamline University School of Law Professor Peter Thompson; Tulane University Law School Professor Edward Sherman; and Steve Gensler, professor at the University of Oklahoma College of Law and member of the United States Judicial Conference Advisory Committee on Civil Rules.

During the roundtable sessions, the participants discussed a multitude of issues surrounding courts and the use of alternative dispute resolution, particularly mediation. The Uniform Mediation Act (UMA), now enacted in 11 jurisdictions, covers mediation privilege, reports to the trier of fact, mediator conflict of interest, and right to be accompanied in mediation by counsel or other persons. The UMA deferred resolution of some issues, including those regarding whether it was possible or necessary to place limits on the authority of the presiding judge to require parties to act in ways that stimulate settlement. Some of the unsettled issues from the drafting of the UMA included: the extent to which courts could or should compel participation in mediation, whether courts could define a required amount of participation in dispute resolution processes, how a judge decides when a case assigned for trial is appropriate for mediation, whether courts should compel parties to pay mediators and whether private mediators who receive court or other public agency referral could also be subject to regulation.

The roundtable sessions included discussions on dealing with the interests at stake in modifying laws about court-mandated mediation, possible limits on court authority, finding consensus for possible new proposals and gauging the level of consensus on changing the law. The suggested changes ranged from alternation of the Federal Rules of Civil Procedure to changes in local court rules. The participants did not reach a consensus on whether UMA reform was the proper method to address these issues. However, at least one participant offered the possibility that UMA reform, along with widespread adoption by all states and jurisdiction, would have the same effect as a federal rule or statute without the need for congressional action. Those participants who understood the process of changing the Federal Rules of Civil Procedure weighed in with their experience. Others, familiar with the process of creating the UMA, weighed in on the nature in which uniform state rules could change court actions.

In addition to the roundtable sessions, the Honorable Sandra Beckwith served as the lunchtime keynote speaker at the joint Symposium and Mentoring and More lunch. Judge Beckwith spoke about the necessity of new laws providing judges with flexibility and discretion instead of requiring rigid adherence. Judge Beckwith then asked the audience members to step into her shoes and consider what information and considerations were important when deciding whether to send a case to alternative dispute resolution. This thought provoking discussion brought out issues of sending cases to mediation, whether to send cases to private mediation providers, the ethical considerations of requiring mandatory mediation and situations in which a rule mandating mediation would be proper.

Codifying Mediation 2.0, conducted as a roundtable, was merely the beginning of suggestions for change. The symposium is a starting point for written articles based on the topics discussed, including articles about future codification of mediation rules. Look for these articles in the paper symposium issue of the Ohio State Journal on Dispute Resolution in the fall of 2010.

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Erin Archerd
Langdon Fellow in Dispute Resolution
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The Caucus, the newsletter published by the Moritz Program on Dispute Resolution, is designed to share ADR news with the Moritz community and beyond, as well as provide Moritz students with information regarding externship and employment opportunities. Questions regarding this publication should be directed to Erin Archerd, Langdon Fellow in Dispute Resolution.