The Supreme Court of Ohio Committee on Dispute Resolution was appointed in 1989 by the late Chief Justice Thomas J. Moyer, who saw the importance of opening Ohio's courts to the use of alternative dispute resolution.
Chief Justice Moyer's address to the Joint Convention of the 118th General Assembly stated:
There is no system of justice in the world that is more accessible than the American judicial system. Our purpose is to fairly and impartially resolve people's disputes in a peaceful forum. The institution is viable because it enjoys the confidence of the people it serves. But if we ask ourselves whether the system functions as effectively as it can, the answer is no. Too many people are frustrated with the delay and the cost associated with resolving civil disputes. Too many cases are filed that should not be filed; too many cases languish on court dockets only to be settled after considerable delay and expense . . .
The time to consider alternative means of dispute resolution is here . . .
We have a unique opportunity to say to persons who look to the Ohio legal system for the resolution of their disputes that we have various processes to resolve those disputes fairly and efficiently.
The original committee consisted of 34 members with a broad range of backgrounds and experience: trial lawyers, judges, educators, arbitrators, mediators, and others. The committee has had five chairpersons: David Ward (1989 - 1994), Judge James DeWeese (1994 - 1996), Robert Rack (1996 - 2000), William Clark (2000-2006) and Frank Motz (2006-present).
The committee's initial work was performed through four subcommittees: municipal court, common pleas court, domestic relations and juvenile courts, and administrative. Art Marziale, then Chief Justice Moyer's administrative assistant, provided early staffing assistance.
In 1991, the committee submitted its Preliminary Report and Recommendations to the Supreme Court. The committee recommended that the Court:
- Establish an office of dispute resolution to provide technical assistance, monitoring, and training to courts interested in providing dispute resolution programs.
- Encourage all courts to adopt dispute resolution programs as a part of a comprehensive case-management program.
- Consider asking the General Assembly of Ohio to fund court-related dispute resolution programs as part of the judiciary budget administered by the Supreme Court.
- Mandate continuing education in dispute resolution concepts for judges in Ohio.
- Mandate a one-time mandatory continuing legal education requirement in dispute resolution concepts for attorneys in Ohio.
- Assure minimum standards for qualifications and training of mediators in court-administered programs.
- Adopt a rule of superintendence to establish the qualifications of mediators in court-administered programs involving child custody and visitation matters.
- Request the General Assembly of Ohio to adopt a statute providing a privilege for mediation.
- Adopt a superintendence rule authorizing the use of arbitration in the juvenile and domestic relations divisions of the common pleas court.
- Request the General Assembly to continue funding of the Ohio Commission on Dispute Resolution and Conflict Management through June 30, 1993.
- Not establish a directory of mediators.
Except for recommendations four and five -- mandatory education in dispute resolution concepts for all judges and attorneys in Ohio -- these recommendations were adopted by the Court and have guided the work of the committee. The Court did not deem it appropriate to mandate continuing education for judges and attorneys. Since 1992, however, many judges, magistrates, and attorneys have participated in both continuing legal education and mediation training.
The Supreme Court of Ohio Dispute Resolution Section was created in 1992. The staff coordinates and facilitates the work of the Commission on Dispute Resolution.
One of the early initiatives of the commission was creation of a Circuit Rider Program. Over an 18-month period, the Supreme Court employed a consultant who assisted several municipal and county courts in recruiting, training and utilizing volunteer mediators in the resolution of small claims disputes. Judge Howard Zwelling, then judge of the Zanesville Municipal Court, played a key role in the development of that program. Shirley Cochran, a Columbus attorney and mediator, served effectively as the circuit rider. The experience and lessons learned from that program have been useful in implementing subsequent programs involving other courts.
An evaluation subcommittee led by Nancy Rogers, dean of the Ohio State University Moritz Collee of Law, designed a feedback questionnaire to determine how attorneys and parties felt about court-provided mediation. The data collected was professionally analyzed and evaluated by Roselle Wissler, Ph.D. This research demonstrated that as courts and attorneys become more familiar with mediation, the better they like it and the more willing they are to use it as a means of resolving litigated disputes without going to trial.
In 1996, based on the goal of increasing attorney and client participation in mediation, the committee implemented a three-year pilot program to test the feasibility of in-house mediation, i.e., having a mediation coordinator employed by the local court to mediate cases and otherwise serve as an integral part of its case management system. Three common pleas courts of varying sizes (Clinton, Montgomery, and Stark counties) participated in this program. Frank Motz, then a consultant provided by the Supreme Court, assisted the courts throughout the project. Each court received grants of federal and state funds to pay for the salaries of a mediator and support person. The program proved to be successful, and all three courts elected to continue the program after their Supreme Court funding ceased.
Based on the success of the pilot project, the court decided to begin the process of institutionalization, i.e., to encourage and assist courts throughout the state to implement in-house mediation programs. The current goal of the Supreme Court is to have mediation services available in the common pleas courts of all of Ohio's 88 counties by the year 2005.
In 1997, 11 additional court mediation programs were approved and funded for three years by the Supreme Court. Ten more courts were added to the growing list of participants in 1998 and six courts in 2000. Seven courts were added in 2001 and an additional 12 courts since then.
The funding mechanism provided by the Ohio General Assembly to the Supreme Court has been vital to the committee's work. The General Assembly appropriated approximately $1 million per year for grant projects. Each new court program is now funded for a period of two years, after which the local court provides its own funding.
The committee has also been instrumental in implementing Ohio legislation and rules relating to dispute resolution. Rule 16 of the Rules of Superintendence for the Courts of Ohio governs parenting mediation programs in domestic relations courts. The committee also supported legislation that permits courts to provide funding for mediation programs through add-on filing fees.
Judge James Ray and David Ward from this committee were appointed to the Ohio Courts Futures Commission in 1997. The commission's charge was to "develop an ambitious vision of what Ohio's courts could and should look like in the year 2025."
Recommendations about dispute resolution include the following:
- Ohioans should be able to use the courts to initiate non-adversarial dispute resolution processes without filing a lawsuit.
- All courts should routinely make available a continuum of dispute resolution tools, from mediation and other forms of assisted negotiation to arbitration and traditional litigation. Court intake staff should be familiar with all of these options, and trained to evaluate disputes and assign them to an appropriate track. In some types of cases (e.g., juvenile and domestic cases in which vital relationships need to be preserved), mediation may be a mandatory first step, but the right to a trial should be preserved and parties should not be penalized if they fail to reach agreement through mediation.
- Courts should employ well-qualified mediators as deemed appropriate and make effective use of outside resources to deliver non-adversarial dispute resolution services.
- Courts should make appropriate use of collaborative/consensus-based processes in resolving mass tort cases and public policy disputes.
- With the consent of crime victims, mediation should be employed before filing of charges in some lower-level criminal and delinquency cases such as neighborhood disputes, graffiti, or shoplifting. Mediation/restorative justice processes should also be considered, with the victim's consent, after charges are filed in some nonviolent delinquency, misdemeanor and low-level felony cases involving first offenders.
- The Supreme Court and intermediate Courts of Appeals should explore ways in which mediation and collaborative policy setting can expedite resolution of appellate cases and public policy disputes.
The committee provided significant input to the Ohio Courts Futures Commission regarding dispute resolution and mediators. The committee believes that the Supreme Court of Ohio should ensure minimum standards of training qualifications for mediators in court-administered programs, but the committee stopped short of recommending that Ohio should license or certify specific mediators. The rationale for this approach is found in the fact that there is no evidence to support that any particular education, work experience or training is the determining factor in obtaining quality mediation. Courts using mediators in court programs must retain and supervise qualified mediators.
The Dispute Resolution Section addressed appropriate expansion of victim offender mediation/dialogue and supports expansion of these services in Ohio courts. The section will consider how courts may make appropriate use of collaborative, consensus-building processes in resolving mass tort cases and public policy disputes. The Ohio Commission on Dispute Resolution and Conflict Management is an ideal partner for this effort because of the commission's previous involvement in such matters.