Last week the Ohio Supreme Court issued a scheduling order in ESPN's case against Ohio State for not turning over documents. ESPN claims that a number of public records request have not been honored by OSU. Among the missing records are emails involving Sarniak, records regarding NCAA violations, and others.
The scheduling order sets a timetable for the case to be decided over the next few months. Because a many-months crawl to justice would be too quick for OSU, the university recently tried to slow things down.
Yesterday, OSU asked the Ohio Supreme Court to refer the case to mediation. If the court agreed, then the scandal-hungry media company and the scandal-plagued university would try to resolve things amicably with a powerless neutral person to help facilitate the dialogue. As you could imagine, mediation has a wonderful chance of making both sides extremely happy. /s
ESPN must respond to OSU's recent request on Monday. Presumably, ESPN will oppose mediation, mainly because there remain fundamental differences between both sides over the scope and effect of FERPA (the federal student privacy law). ESPN thinks it doesn't apply to emails about NCAA violations, and OSU disagrees. Based on the letters from both sides that appeared in yesterday's filing, the two sides have no chance of meeting in the middle. ESPN would undoubtedly leave mediation without the smoking guns it so desperately seeks.
I view Ohio State's request for mediation as having two main objectives: (1) to take this fight out of the public eye; and (2) to prolong the process. Dragging things out is in OSU's interest because it increases ESPN's costs and it also promises that any revelations from the mysterious documents (if they ever see the light of day) will be old news once they emerge.
This would be a wonderful opportunity for the Ohio Supreme Court to punt, so to speak. While I don't think there's much merit to the mediation request due to the intractable FERPA issue, I would never underestimate an elected official's aversion to making a controversial decision.
Yes, these judges are elected. Long live democracy.
[edit: as always, the court documents can be found at this link]