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Published in Print: January 23, 2002, as Mediator Has Tough Job In Ohio Funding Case

Mediator Has Tough Job In Ohio Funding Case

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Howard S. Bellman is being asked to do what no Ohio lawyer, legislator, or governor has been able to do: Resolve a school finance suit that is a decade in the making—in less than 10 weeks.

That Herculean task fell to Mr. Bellman after the Ohio Supreme Court in November ordered mediation as a way to end the state's long-running school finance case.

At the time, lawmakers and educators throughout the state raised a collective eyebrow in skeptical bemusement. How was it possible, they wondered, for anyone—even a professional mediator—to resolve such a complex and contentious issue so quickly?

One editorial writer even went so far as to say that if the court-appointed mediator could break the deadlock and persuade the parties involved to settle the dispute, "he should be called miracle worker, not mediator."

Well, "miracle worker" is not listed on the résumé of Mr. Bellman, the 64-year-old lawyer assigned to mediate the case, known as DeRolph v. State of Ohio. But plenty else is.

Mr. Bellman, who lives in Madison, Wis., has decades of experience mediating complex public-policy disputes, environmental disputes, and collective-bargaining. But this is the first time he has mediated a school finance case of this magnitude. In fact, education finance experts say this is likely the first time a state school finance case has gone to mediation at this late a stage in the game.

As to whether he will succeed in such a short time with a case as long-running and tangled as the school funding dispute in Ohio—which was filed in 1991 by a rural school seeking more aid—Mr. Bellman simply doesn't know.

"It's a fair question, but I don't know the answer," Mr. Bellman said in a recent interview. Mr. Bellman must submit a report to the court in mid-February. If he is not able to get the two sides to agree on a resolution, or get an extension for further mediation, then the state supreme court will take up the case again.

"You don't know until the end," he said. "All I can do is plod along and learn the case and try to help the parties, and then report back when the time comes."

Starting Differences

The road to court-ordered mediation in the case began with a Sept. 17 motion in which Gov. Bob Taft asked the state supreme court to reconsider a then-2-week-old ruling that had ordered the state to raise education spending by $1.2 billion over two years. It was the court's third decision in the case.

Gov. Taft, a Republican, argued that the court had used faulty data to calculate the cost of its funding fix, and that the economic fallout from the Sept. 11 terrorist attacks made it even more difficult for Ohio to pay for the court-ordered remedy.

The court agreed to reconsider the case, and then ordered mediation in a 4-3 ruling handed down on Nov. 16. The court hired Mr. Bellman to guide the discussions in December, after giving both the state and the plaintiffs a list of possible mediators. The parties who are meeting with Mr. Bellman include Mary Lynne Readey, the assistant attorney general who represents the Republican majority legislators and Gov. Taft; Nicholas A. Pittner, a lawyer representing the coalition of school districts that sued the state; and Sen. Ben Espy, who represents the interests of the Democratic minority in the legislature.

The parties are not talking publicly about the mediation. But observers saw rough spots from the start. In his initial report to the supreme court this month, Mr. Bellman wrote, "The particular matters suggested as appropriate for governing the mediation process are under discussion."

Apparently, the coalition representing the plaintiffs differed with state officials over whether the whole case was up for negotiation, or just certain aspects of it.

Gov. Taft indicated in a December press release that he viewed the mediation process as a chance to resolve "the few remaining issues" identified in the state's motion for reconsideration. The plaintiffs, meanwhile, have said they see mediation as a chance to revisit broader issues raised in the court's earlier rulings.

"We the plaintiffs believe that the current [school aid] system is incongruent with the court's original order of a systematic overhaul," said William L. Phillis, the executive director of the Ohio Coalition for Equity and Adequacy of School Funding, a group representing the 500-plus school districts that sued the state.

"We must secure high-quality educational opportunities for every kid and that has not been accomplished so far," he continued. "We have this complete systematic overhaul to protect; will not move on that position."

Warren Russell, the director of legislative services for the Ohio School Boards Association, said the question of what's up for negotiation in the mediation process "is a very big question in terms of where it goes and what would be included in a settlement."

'Clash of Titans'

Without going into specifics of the case, Mr. Bellman acknowledged that it is unusual because of the enormously high stakes for Ohio's schools and the other state services that depend on public dollars. The case is also out of the ordinary, he says, because it highlights a tension at the intersection of the state's various branches of government.

"The executive and the legislature seem to think that the courts are legislating, and the courts seem to believe that unconstitutional conduct has occurred," Mr. Bellman added. "So there's sort of a clash of the titans there. And the decision will necessarily need to be made by one of the parties; there's no place else to go with the case."

Mr. Bellman said his job is not to tell the parties what the answer is. Rather, he says, he works to understand the different points of view of the competing parties and then tries "to help them find ways of reconciling their points of view."

"All of that involves many, many, many conversations," Mr. Bellman added. "Sometimes with them together and sometimes with them separately."

Over the course of his career, Mr. Bellman has developed vital background for his work in Ohio. He has mediated collective bargaining disputes in schools, and was the secretary of Wisconsin's department of labor in the 1980s.

Perhaps just as significant is the fact that Mr. Bellman is both an outsider and an insider to the Buckeye State. He has lived and practiced in Wisconsin for many years now, and did not know the particulars of this case until he was called on to mediate. Still, he grew up in Toledo, Ohio, and went to public schools there before attending college and law school at the University of Cincinnati.

"The fact that I'm from the outside means that I don't come to the case with a bias," Mr. Bellman said. "If I lived in Ohio, it may have been difficult for me not to have some sort of attitude about the case coming in. But I think that knowing I spent some formative time here, that was important, too."

Vol. 21, Issue 19, Pages 14,18

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