Kreger v. Norfolk Southern Raillway Company

Filing 20

ORDER FOR COURT-CONDUCTED MEDIATION. Signed by Magistrate Judge Michael J Newman on 10/22/2012. (kf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

HEATHER KREGER,

:

Plaintiff,

Case No. 3:11-CV-277

:
District Judge Walter H. Rice

-vs-

:
Magistrate Judge Michael J. Newman
(Mediation)

:
NORFOLK SOUTHERN RAILWAY
COMPANY,

:

Defendant.

:

ORDER FOR COURT-CONDUCTED MEDIATION

The above-captioned action is hereby set for mediation at 9:30 a.m. on Thursday,
December 6, 2012, in the Chambers of Magistrate Judge Michael J. Newman, Room 505, at the
United States Courthouse and Federal Building, 200 West Second Street, Dayton, Ohio, 45402. The
terms and conditions of the mediation are as follows:
Designation of Mediator: On Order of Judge Walter H. Rice, the undersigned will serve as
the mediator in this case. The case remains assigned for trial and all other purposes to Judge Rose.
Preparation for Mediation: Not later than Thursday, November 29, 2012, each party is
ORDERED to submit a “Mediation Statement” to the Court. Parties are directed to submit their
statement to the Court via e-mail at: [e-mail]. The statement shall
set forth the relevant positions of the parties concerning factual issues, issues of law, damages, and
the settlement negotiation history of the case, including a recitation of any specific demands and

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offers that have been conveyed. Written statements should not exceed five pages in length. Parties
may send to the same email address any important documents/exhibits as necessary, so long as those
documents will aid in the Court’s understanding of the party’s position. The contents of each
party=s statement and attached exhibits will not be shared with the other party, and will only
be used to assist the mediator in understanding the parties’ respective positions. These
statements will be maintained by the Court separate and apart from the case file. If a party is
concerned that having all of the parties in the same room at the outset of the mediation could hinder
a resolution, that party should inform the mediator of its concerns in the mediation statement and
contact Magistrate Judge Michael Newman’s Judicial Assistant at [phone] prior to
November 29, 2012.
In addition, counsel for each party is ORDERED to submit to their client and the Court (via
email to [e-mail]) by Monday, December 3, 2012 a non-binding,
detailed projected litigation budget. The budget shall include projected costs and fees for the
remaining pretrial issues in this case, including but not limited to depositions, written discovery,
motions for summary judgment, and oral arguments before the Court. Each party’s litigation budget
is not to be shared with the opposing party, and shall not be filed on the Court’s electronic filing
system.
Attendance and Participation:

Unless excused by the Court, parties or party

representatives with complete authority to negotiate a settlement of the case must attend the
mediation session in person.
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For a party which has made a claim in the case, such representative must
have full and final authority, in the representative=s own discretion, to
authorize dismissal of the claim with prejudice or to accept a settlement
payment equal to the opposing party’s last offer.
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For a party defending a claim, such representative must have final settlement
authority to commit the party to pay, in the representative=s own discretion, a
settlement amount equal to the opposing party=s prayer or last offer,
whichever is less.

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Any insurance company which is a party or is contractually required to
defend or pay damages, if any, assessed within its policy limits in this case
must have a fully authorized representative present in-person. Such
representative must have final settlement authority to commit the company to
pay, in the representative=s own discretion, an amount within the policy
limits, or up to the claiming party=s last demand, whichever is less.

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Negotiations may be conducted solely by trial counsel if, but only if, counsel
has been fully authorized by his or her client to pay or accept in settlement
the amount last proposed by the opposing party in counsel=s sole discretion.

Confidentiality: Pursuant to S. D. Ohio Civ. R. 16.39(c), all statements made by the parties
relating to the substance or merits of claims or defenses made in the case, whether written or oral,
made for the first time during the mediation conference or in the mediation conference statements
required above shall be kept confidential by the Court, the parties, and counsel, and shall not be
admissible in evidence for any reason during the trial of this case. This provision does not preclude
admissibility in other contexts, such as a motion for sanctions regarding the mediation conference.
Sanctions: This mediation session is scheduled in the Court for one full day; the Court will
use its best efforts not to schedule anything else on the same day. Accordingly, the Court’s
expectation is that all who attend the mediation will make reasonable efforts to come to the
mediation session prepared to attempt settlement in good faith. The Court has no doubt of the good
faith of both counsel and the parties in this case. Out of an abundance of caution, however, the
Court advises that failure to comply with any portion of this Order is sanctionable under Fed. R. Civ.
P. 16(f). This provision applies to counsel, the parties, insurance representatives, and all others who
attend the mediation. The Court may sanction any party, attorney, insurance representative, or other
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mediation attendee who engages in acts of bad faith, who purposely acts to impede the mediation
process in any manner, or who violates any provision of this Order.
Additionally, all attorneys, insurance representatives, and parties (and their representatives)
are required to each stay until the end of the mediation session, which may run well past regular
Court business hours and well into the night, if necessary. Those attending the mediation session
who make travel arrangements shall plan to travel back to their offices the day after the mediation
session and not the day of the mediation. Mediation attendees shall not be excused from the
mediation session because of another commitment, or in order to “catch a flight” or return to the
airport, even if they remain available thereafter by cell phone or email. Accordingly, all of those
attending the mediation should make any necessary arrangements to stay until dismissed by the
Court.
IT IS SO ORDERED.
October 22, 2012
s/Michael J. Newman
United States Magistrate Judge

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