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David A. Doyle
Conference Attorney and Appellate Mediator

 LOC.R. 4 PREHEARING CONFERENCE PROCEDURES

            Pursuant to App.R. 20 and Loc.R. 4, the Court conducts prehearing mediation conferences on appeal to encourage and facilitate the settlement and resolution of civil and administrative appeals.  Cases are scheduled by the Court and may be scheduled at the request of one (1) or more parties.  The following are some commonly asked questions presented for your assistance.

 ¨ What cases are eligible for Loc.R. 4 prehearing mediation conferences?  Loc.R. 4 provides that all civil and administrative appeals are eligible for a mediation.

 ¨ How are counsel advised that their appeal has been selected for a prehearing mediation conference?  Counsel receive a Notice of Loc.R. 4 Conference advising them of the date and time of the conference, whether it is to be held by telephone or in person, and how they and their clients are to prepare.

 ¨ Why are conferences scheduled shortly after the notice of appeal is filed?  Loc.R. 4 conferences are held shortly after the notice of appeal is filed so that resolution of the appeal or settlement of the case can be explored prior to the parties incurring further cost and expense on appeal.  It has been the experience of the program that the filing of briefs dramatically reduces the likelihood that the parties will be able to reach a mutually agreed upon resolution. 

 ¨ Are the Loc.R. 4 prehearing mediation conferences conducted in person or by telephone?  When all participants reside in the Columbus metropolitan area, Loc.R. 4 conferences are usually held at the Courthouse.  However, conferences are often conducted by telephone if one of the participants resides outside of the metropolitan area or other factors dictate that counsel would be better served by a telephone conference.  Experience shows that telephone conferences have been equally effective at fostering settlements.  The telephone conferences are initiated by the Conference Attorney who has six (6) telephone lines.  It is important to note that telephone conferences are afforded the same consideration as in person conferences.

 ¨ Are the times on appeal suspended upon notice of a Loc.R. 4 conference?  No.  The times on appeal continue as usual.  However, upon motion filed, the court will consider extending the times on appeal in short increments if conducive to settlement and helpful to the parties.

 ¨ What if I have an unavoidable conflict with the scheduled date and time?  If you need to reschedule because of a previously scheduled court appearance, planned vacation or unforeseen emergency, please call the conference secretary, Christina Adkins at (614) 462-6083.  Alternative dates and times will be provided to you.  It is the duty of the rescheduling attorney to contact all other counsel on the case to arrive at a mutually agreeable date and time and then to promptly notify the conference secretary of the rescheduled date and time.  Rescheduled cases are typically held within fourteen (14) days of the originally scheduled conference.

 ¨ Who conducts the Loc.R. 4 prehearing mediation conferences?  In October 1989, the court appointed David A. Doyle, Esq., to administer the settlement conference program and to conduct the Loc.R. 4 conferences.  Since 1989, Mr. Doyle has mediated over 3,400 cases encompassing a broad range of civil and administrative cases with a resolution rate of 56%.  Mr. Doyle also has considerable experience as a trial court mediator at the state trial court and federal district court levels.

 ¨ Is participation in Loc.R. 4 prehearing conferences optional?  No.  Participation in Loc.R. 4 conferences is mandatory whether the appeal was scheduled by the Court or at the request of a party.

 ¨ Must each party's lead attorney attend conference?  Yes.  It is critical that each party be represented at the Loc.R. 4 conference by an attorney who is not only conversant with the case but is the attorney on whose advise the party relies.  If more than one attorney meets these criteria, either one may represent the client in the Loc.R. 4 conference. 

 ¨ Are the parties required to attend?  If the notice indicates that client attendance is mandatory, the clients must be present with counsel at the prehearing mediation conference.  Please note, that the failure to comply may result in a recommendation of sanctions.  If clients are not required to attend the initial conference, parties or their designated representatives with full settlement authority shall be available by telephone for the duration of the conference to facilitate the settlement discussions.  However, parties are often required to participate in a follow-up conference or in a private discussion with their counsel and the Conference Attorney in the context of the ongoing mediation.  The Conference Attorney encourages active client participation when helpful or conducive to the settlement discussions. 

 ¨ How long do the conferences last?  On average, the conferences typically last approximately sixty to ninety minutes.  It is not unusual, however, for the conferences to go beyond one (1) hour, and the conference attorney will afford counsel and the parties as much time as necessary to accomplish the purposes of the prehearing conference.

 ¨ What preparation is required of counsel?  Counsel are to consult with their clients prior to the Loc.R. 4 conference and obtain the requisite settlement authority.  Counsel are to be prepared to fully explore in good faith all options, avenues, and possibilities which might lead to a mutually acceptable resolution of the case.  Counsel should also review their factual and legal positions prior to conference.  Discussion of settlement is not necessarily limited to the appeal itself.  If settlement of the appeal will not dispose of the entire case, or, if related litigation is pending or anticipated in other forums, counsel are invited and encouraged to explore the possibility of a global settlement. 

 ¨ What takes place at the Loc.R. 4 prehearing conference?  While Loc.R. 4 prehearing conference procedures are official proceedings of the Court, they are conducted in a relatively informal manner.  Discussions are typically conversational rather than argumentative.  Initially, procedural issues and questions are addressed.  The primary substantive issues and anticipated assignments of error are then discussed.  Thereafter, resolution is actively explored through the mediation process.  The mediation focuses on the possible outcomes on appeal; the risks and costs of further litigation; the interests and motivations of the parties; and the potential benefits gained through resolution of the appeal or settlement of the entire case.  The Conference Attorney typically meets jointly with counsel and the parties and then meets separately in caucus with each side in his role as mediator.  He may shuttle between the parties and their counsel or meet with counsel only.  Settlement options and proposals are thoroughly discussed.  Resolution may or may not be reached during the initial conference.  Following an initial conference, the Conference Attorney typically initiates further discussions by telephone or will schedule follow-up conferences if helpful.  By the conclusion of the Loc.R. 4 prehearing conference process, the parties have either reached a resolution or have identified the remaining obstacles and areas of impasse.

 ¨ What is the role of the conference attorney in the Loc.R. 4 prehearing conference process?  The Conference Attorney serves as a mediator and he may perform a variety of roles as may be conducive to the settlement process.  He may act as a facilitator, moderator or intermediator.  He may act as a sounding board or as a reality check.  Typically he will encourage neutral analysis rather than arguments and accusations.  He will assist as needed in the generation of possible options for resolution.  As mediator, he will work closely with counsel and the parties in facilitating impasse negotiations and encouraging collaborative problem-solving in the search for mutually agreeable terms.  Throughout the Loc.R. 4 prehearing conference proceedings, the conference attorney, while active in the discussions, remains impartial and neutral.  Moreover, as mediator, he will maintain the confidences of the parties and he makes no recommendation to the court on the merits of the case.

 ¨ Are Loc.R. 4 conferences confidential?  Yes, Loc.R. 4 conference proceedings are confidential and off the record.  The conversations are also protected by the mediation privilege statute.  See R.C. 2317.023.

 ¨ Do judges of the Court of Appeals know what transpires at Loc.R. 4 conferences?  The court does not know what has transpired at the prehearing conference and any settlement discussions or negotiations which have taken place remain confidential and are not revealed to the Court.  The prehearing conference process provides appellate counsel and the parties with a confidential and credible, no risk and low cost environment in which counsel and the parties can actively explore options and avenues of resolution which are consistent with the best interests of their clients.  If no agreements are reached, the case is absolutely unaffected and those in the decisional process that might follow know nothing about the mediation discussions.

 ¨ How can I best use the Loc.R. 4 conference to benefit my client?  Recognize that the Loc.R. 4 prehearing conference procedures provide a short window of opportunity to achieve a favorable outcome consistent with your client's overall interests and risks.  While maintaining your role as an advocate, understand that the appellate mediation conference is essentially cooperative rather than adversarial.  Take advantage on appeal of the opportunity to talk constructively and confidentially with counsel for the other parties.  Listen closely to what the other participants have to say.  Try to be as candid as possible without posturing.  Be persuasive yet open to persuasion.  Keep in mind that your views and the views of opposing counsel about the case may change during the course of the mediation process which may lead to additional avenues and options for resolution and mutual gain. 

 ¨ How can a Loc.R. 4 prehearing conference be requested?  Counsel may request a Loc.R. 4 prehearing conference by calling or writing Attorney David A. Doyle, the Conference and Mediation Attorney for the Tenth District Court of Appeals, Franklin County Courthouse, 373 S. High Street, 24th Floor, Columbus, Ohio 43215, voice (614) 462-4023, fax (614) 462-7249, or email dadoyle@co.franklin.oh.us.  Requests for conferences can also be directed to Court Administrator Jack Kullman, Jr., at the same address and telephone number.  Further, counsel may request a conference by formal motion filed with the Court.  Counsel will be advised by notice that a conference has been scheduled.