Neff v. Department of Veterans Administration

Filing 28

AMENDED MEDIATION ORDER - Mediation Hearing set for 8/7/2020 at 09:30 AM by Video and Teleconference before Magistrate Judge Michael J. Newman. The undersigned will first speak to Plaintiff, and will speak to Defendant at 11:00 a.m. on August 7, 2020. The undersigned will provide video and telephone conference instructions to each party prior to the mediation date.. Signed by Magistrate Judge Michael J. Newman on 6/9/2020. (srb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CHRISTY NEFF,
Plaintiff,

Case No. 3:18-cv-73

vs.
DEPARTMENT OF
VETERANS AFFAIRS, et al.,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendants.
______________________________________________________________________________
AMENDED MEDIATION ORDER
______________________________________________________________________________
This case is referred to the undersigned for mediation. The undersigned sets this case for
mediation to be conducted by video and telephone conference commencing at 9:30 a.m. on
August 7, 2020. The undersigned will first speak to Plaintiff, and will speak to Defendant at 11:00
a.m. on August 7, 2020. The undersigned will provide video and telephone conference instructions
to each party prior to the mediation date. The mediation is governed by S. D. Ohio Civ. R. 16.3(c).
Agreement to Attend and Participate in Good Faith
Participation in mediation is entirely voluntary. Unless the parties file a notice vacating
the mediation on or before July 31, 2020, the parties AGREE to be bound as follows:
1. Any party may seek to unilaterally vacate the mediation at any time before it
commences. In the absence of extraordinary or unforeseen circumstances, a
party requesting to vacate the mediation after July 31, 2020 agrees to pay the
reasonable costs and fees incurred by all other parties that relate to the
mediation (such as preparation time and travel).
2. Each party is REQUIRED to attend the mediation with trial counsel. If the
party is a business or governmental entity, such party shall have a representative
attend the mediation session along with trial counsel.

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3. If a party has insurance and involvement of the insurance provider is necessary
to settle the case, an insurance company representative shall attend the
mediation along with the named party/representative and trial counsel.
4. Unless otherwise permitted by the Court, each party shall have individuals with
“complete settlement authority” present at the mediation. An individual has
“complete settlement authority” if that person is fully authorized to approve a
settlement and has the power to change the party’s settlement posture during
the course of the mediation. If the party representative has a limit or “cap” on
his or her authority which would require consultation with others, including
superiors at a corporate office, this requirement is not satisfied.
5. The Court expects all who participate in the mediation -- including but not
limited to counsel, the parties, and insurance representatives -- to comply with
all of the foregoing and to participate in settlement negotiations in good faith.
Failure to comply with any provision set forth this Order amounts to a refusal
to attend and participate in the mediation in good faith, and the parties agree
and consent that the undersigned may sanction any party, attorney, insurance
representative, or other mediation attendee under Fed. R. Civ. P. 16(f) and S.D.
Ohio Civ. R. 16.3 for breaches of this Order. This Order constitutes the notice
contemplated by S.D. Ohio Civ. R. 16.3.
6. During the time set for mediation, the Court anticipates that all essential
attendees will have no significant calendar conflicts -- including flight
arrangements -- that will require such attendee to leave the mediation
prematurely.
Preparation for Mediation
Not later than July 3, 2020, each party is ORDERED to simultaneously exchange (by
email) a Mediation Statement, not to exceed 10 pages, and copy the undersigned’s Chambers 1
stating:
(1)

The party’s position;

(2)

Factual and legal issues, including any relevant case law;

(3)

Damages; and

(4)

Settlement negotiation history of the case, including a recitation of any
specific demands and offers/counter-offers conveyed to date.

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All communications with Chambers as required by this Order shall be submitted to
[e-mail].
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The parties may reference certain filings on the Court’s docket (such as motions) in the Mediation
Statement but shall not mail, email, or otherwise send such filings to the undersigned.
Although each party shall exchange Mediation Statements, the parties may submit to
Chambers (by email) other information or important documents that will assist the undersigned in
mediating this case. Such other information or appropriate documents submitted to the undersigned
only, will not be shared with the other party, and will only be used to assist the mediator in
understanding the parties’ respective positions. Mediation Statements, other information,
associated documents will be maintained by the Court separate and apart from the case file.
Proposed Settlement Terms and Response
It is the undersigned’s expectation that all parties coming to mediation have engaged in
some settlement negotiations in advance of the scheduled mediation.

In that regard, the

undersigned expects that all plaintiffs coming to mediation have, at the very least, communicated
an initial demand to all defendants, and that all defendants, at the very least, have communicated
a counteroffer to plaintiffs. To the extent the parties in this case have not done so to date, they are
hereby ORDERED to do so forthwith.
In an effort to facilitate meaningful settlement discussions during the Court’s time, Plaintiff
is ORDERED to separately submit a document titled “Proposed Settlement Terms” containing
the essential terms demanded before 5:00 p.m. on July 16, 2020. Plaintiff’s Proposed Settlement
Terms shall be emailed to Chambers and all counsel of record. This document should reflect only
the essential terms of a settlement agreement -- including a sum specific if money damages are
demanded -- not a detailed final settlement and release agreement. 2

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Plaintiff’s “Proposed

Should this case ultimately settle, the parties will subsequently negotiate and formulate a more
formal, final settlement and release agreement outside the presence of the Court.
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Settlement Terms” should not reflect the same terms communicated to Defendants in Plaintiff’s
initial demand.
Defendants are ORDERED to separately submit to Chambers (by email) and counsel for
Plaintiff a Response to the Proposed Settlement Terms (“Response”) addressing each essential
term demanded by Plaintiff before 5:00 p.m. on July 30, 2020. If Plaintiff has demanded a sum
specific in the Proposed Settlement Terms, Defendants’ Response shall counter with a sum specific
in the Response. Defendants’ Response should not reflect the same offer originally communicated
to Plaintiff in response to the initial demand.
Plaintiff shall arrive at the mediation prepared to immediately reply to Defendants’
Response to the Proposed Settlement Terms.
Pre-Mediation Phone Conference
The undersigned sets this case for a pre-mediation telephone conference with counsel on
July 31, 2020 at 11:00 a.m. Counsel shall call: 1-888-278-0296, enter access code 2725365,
security code 123456, and wait for the Court to join the conference.
IT IS SO ORDERED.

Date: June 9, 2020

/s/Michael J. Newman
Michael J. Newman
United States Magistrate Judge

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