Mediation &

Conference Programs

in the Federal Courts

of Appeals

a sourcebook for judges and lawyers

SECOND EDITION

Robert J. Niemic

Federal Judicial Center

2006

 

This Federal Judicial Center publication was undertaken in furtherance of the

Center’s statutory mission to conduct and stimulate research and development

for the improvement of judicial administration. The views expressed are those

of the author and not necessarily those of the Federal Judicial Center.
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iii

Contents

Acknowledgments, v

1. Introduction, 1

Terminology, 1

Sources for the Information, 2

2. Overview of Federal Appellate ADR, 3

History of Programs, 4

Program Objectives, 5

Comparing Program Features, 6

3. Description of Programs, Circuit by Circuit, 15

First Circuit: Civil Appeals Management Program (CAMP), 15

Second Circuit: Civil Appeals Management Plan (CAMP), 23

Third Circuit: Appellate Mediation Program, 31

Fourth Circuit: Mediation Program, 39

Fifth Circuit: Appellate Conference Program, 47

Sixth Circuit: Mediation Program, 53

Seventh Circuit: Settlement Conference Program, 61

Eighth Circuit: Settlement Program, 69

Ninth Circuit: Settlement Program, 77

Tenth Circuit: Circuit Mediation Program, 87

Eleventh Circuit: Appellate Mediation Program, 93

District of Columbia Circuit: Appellate Mediation Program, 101

Federal Circuit: Appellate Mediation Program, 109

Bibliography, 117
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Acknowledgments

During the updating and editing of this second edition of the sourcebook, the following people at the federal courts of appeals were extremely generous with their time:

• David W. Aemmer, Chief Circuit Mediator, U.S. Court of Appeals for the Tenth Circuit;

• Elizabeth Cronin, Director, Office of Legal Affairs, U.S. Court

of Appeals for the Second Circuit;

• Lowell L. Garrett, Chief Circuit Mediator, U.S. Court of Appeals for the Eleventh Circuit;

• Jan Horbaly, Circuit Executive/Clerk of the Court, U.S. Court

of Appeals for the Federal Circuit;

• Edward W. Hosken, Jr., Circuit Mediator Officer, U.S. Court of

Appeals for the Federal Circuit;

• William T. Howell, Chief Circuit Mediator, U.S. Court of Appeals for the Fourth Circuit;

• David Lombardi, Chief Circuit Mediator, U.S. Court of Appeals

for the Ninth Circuit;

• Hon. Neil Lynch, Settlement Counsel, U.S. Court of Appeals

for the First Circuit;

• John H. Martin, Director, Settlement Program, U.S. Court of

Appeals for the Eighth Circuit;

• Robert W. Rack, Jr., Chief Circuit Mediator, U.S. Court of Appeals for the Sixth Circuit;

• Joel N. Shapiro, Senior Conference Attorney, U.S. Court of

Appeals for the Seventh Circuit;

• Joseph L.S. St. Amant, Senior Conference Attorney, U.S. Court

of Appeals for the Fifth Circuit;

• Nancy E. Stanley, Director of Dispute Resolution, U.S. Court of

Appeals for the District of Columbia Circuit; and

• Joseph A. Torregrossa, Director, Appellate Mediation Program,

U.S. Court of Appeals for the Third Circuit.

The author appreciates the substantial contribution of David E.

Guth. The author also acknowledges the substantial assistance provided by Judge Barbara J. Rothstein, Director, Federal Judicial Center,
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

vi

and James B. Eaglin, Laural L. Hooper, Martha Kendall, and Jennifer

Macierowski, colleagues at the Center.
1

1. Introduction

This sourcebook is a reference guide on mediation and settlement conference programs in the thirteen federal courts of appeals. The Federal

Judicial Center published the first edition of this sourcebook in 1997.

1

The changing structure of these programs and expressed interest from

the courts of appeals made this update necessary.

Terminology

This section describes terminology used throughout the sourcebook.

The courts of appeals refer to mediation and settlement conference

programs and their component parts in various ways. Courts use a variety of terms to describe essentially similar processes. Mediation is also

called conference, settlement conference, and Rule 33 conference, and in this

sourcebook, the term mediation includes all these terms. The mediator,

that is, the person who facilitates party negotiations in mediation sessions, is also called settlement counsel, conference attorney, and circuit mediator. In this sourcebook, the term mediator includes all these terms. In

the circuit-by-circuit descriptions of the courts’ programs, the terms

that a court uses are used in its program description; mediation and conference are often used interchangeably.

For simplicity and ease of presentation, in this sourcebook, certain

words are used in their vernacular, rather than technical, sense. For

example, unless the text indicates that the word appeal refers only to

appeals of district court orders, the word as used in the sourcebook

refers to any proceeding before the court of appeals, including petitions for review of agency or administrative actions, applications for

enforcement of agency or administrative orders, and appeals of district

court orders. Likewise, filing of a notice of appeal also includes filing of a

petition for review of an agency or administrative order and filing of an

application for enforcement of an agency or administrative order. Similarly, appellant means both appellant and petitioner.

A term that became part of the parlance of the circuit mediation

programs for many years is the verb conferenced. Circuit mediators and

other participants in these programs refer to an appellate case as confer-

 1. Robert J. Niemic, Mediation & Conference Programs in the Federal Courts of Appeals: A Sourcebook for Judges & Lawyers (Federal Judicial Center 1997).
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

2

enced if a court’s mediation office determines that the case is eligible for

the mediation program, refers the case for a mediation conference, and

holds at least one mediation conference or session for the case. Circuit

mediators have begun to use the term mediated instead of conferenced;

mediated appears to be the favored term. This sourcebook generally

uses the term mediated.

Sources for the Information

This sourcebook reflects appellate court information gathered through

the end of 2005. In each of the federal courts of appeals, the chief circuit mediator or mediation program manager worked with the author

to revise the court’s program description, using the 1997 sourcebook

as a base. (In some courts, the position equivalent to chief circuit mediator is called senior conference attorney or some similar title.) These

revisions typically included replacing program statistics with more recent data, updating descriptions to reflect changes in program procedures and structures, and ensuring that the sourcebook’s descriptions

were consistent with current court operating procedures and practices.

The author also gathered information by reviewing court local rules,

orders, and related program documents.

The sourcebook notes common elements of each program—eligibility for mediation, conference processes, and program staff, for example. It also describes aspects of each program that the program director believes merit emphasis.

The sourcebook represents a primer on the programs. Local appellate rules, court internal operating procedures, and other court documents provide more comprehensive information about the programs

and, in particular, any changes that have occurred since the end of

2005.
3

2. Overview of Federal Appellate ADR

All thirteen federal courts of appeals have implemented appellate mediation or settlement programs, under Federal Rule of Appellate Procedure 33.

2 Each of the programs encourages or requires counsel for

the parties to discuss settlement, including settlement discussions in the

form of mediation.

3 In most cases referred to mediation, the mediator

is a nonjudicial court employee or other third-party neutral. The

courts’ mediation program offices usually schedule mediations before

the filing of appellate briefs and, in nearly all cases, before oral argument. Most local appellate court rules or procedures on mediation

identify the criteria each court’s mediation program office uses to determine whether a case is eligible for the program and whether to

schedule mediation.

The circuit-by-circuit program descriptions presented in chapter 3

infra indicate the types of cases eligible for the program in each of the

thirteen courts of appeals. The programs described in this sourcebook

do not cover criminal cases.

 2. Rule 33 provides the following:

The court may direct the attorneys, and in appropriate cases the parties, to participate in one or more conferences to address any matter that may aid in the

disposition of the proceedings, including the simplification of the issues and

the possibility of settlement. A conference may be conducted in person or by

telephone and be presided over by a judge or other person designated by the

court for that purpose. Before a settlement conference, attorneys must consult

with their clients and obtain as much authority as feasible to settle the case. As

a result of a conference, the court may enter an order controlling the course of

the proceedings or implementing any settlement agreement.

3. The basic concepts of mediation used in the federal courts of appeals are fundamentally the same as those used in the federal district courts. The Center is revising a similar sourcebook about alternative dispute resolution programs in the district courts. See

Elizabeth Plapinger & Donna Stienstra, ADR and Settlement in the Federal District

Courts: A Sourcebook for Judges and Lawyers (Federal Judicial Center 1996) (also published by CPR Institute for Dispute Resolution 1996). Upon completion, the revised district court ADR sourcebook can be accessed on the Center’s website at www.fjc.gov. See

also Robert J. Niemic, Donna Stienstra & Randall E. Ravitz, Guide to Judicial Management

of Cases in ADR (Federal Judicial Center 2001) (describing principles of mediation and

offering guidance to federal district and bankruptcy courts on when to refer appropriate

cases to ADR and how to manage cases referred).
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

4

History of Programs

As the chronology in Table 1 shows, one federal court of appeals implemented a conference program in 1974.

4 By the end of the 1980s,

five of the thirteen courts had conference or settlement programs; during the 1990s, seven more added programs; and the Federal Circuit

added one in 2005. Some early programs lapsed and, in each court in

which that happened, the court later started a new or replacement program—often through evolution of the new program over a number of

years. The year listed in Table 1 marks, for each court, the start of the

program that evolved into the program that the court had in place as of

the end of 2005.

Table 1. Year of Implementation of Mediation and

Conference Programs in the Federal Courts of Appeals

Second Circuit

Sixth Circuit

Eighth Circuit

Ninth Circuit

D.C. Circuit

Tenth Circuit

First Circuit

1974

1981

1981

1984

1987

1991

1992

Eleventh Circuit

Fourth Circuit

Seventh Circuit

Third Circuit

Fifth Circuit

Federal Circuit

1992

1994

1994

1995

1996

2005a

a. From 1989 to October 3, 2005, the Federal Circuit had a settlement program. The court replaced this with a mediation program

in 2005. Under the settlement program, the court’s local rule required that attorneys for the parties hold settlement discussions in all

civil cases that met eligibility requirements. Generally, the court did

not keep track of attorneys’ compliance with this rule or learn with

certainty whether the settlement discussions that attorneys did hold

were substantive or merely pro forma.

 4. Some state courts have established appellate mediation programs as well. As of

April 2002, appellate-level courts in thirty-one states had active appellate mediation programs at various levels of the appeal process. For example, one state might have mediation programs at the intermediate court of appeals level and at the state supreme court

level. See generally Nancy Neal Yeend, State Appellate ADR: National Survey and Use

Analysis with Implementation Guidelines (2d ed. 2002); see also Roger A. Hanson, Carol

R. Flango & Randall M. Hansen, The Work of Appellate Court Legal Staff (2000); Robert

J. Niemic, On Appeal: Mediation Becoming More Appealing in Federal and State Courts, Disp.

Resol. Mag., Summer 1999, at 13.
OVERVIEW OF FEDERAL APPELLATE ADR

5

In 1994, the Judicial Conference of the United States put into effect

an amended Rule 33. The amended rule

• permits courts to require clients to attend mediation sessions

with their attorneys;

• requires attorneys to consult with clients to obtain as much settlement authority as feasible;

• authorizes settlement as a topic during Rule 33 conferences;

• recognizes the possibility of telephone conferences; and

• authorizes non-judges to preside over conferences (which

many programs already allowed).

5

Program Objectives

As described below, several objectives are common to the majority of

the programs.

Settling cases through facilitated negotiations

The primary focus of the programs is settlement of cases. As structured

by the program managers, mediation sessions exist to help parties

communicate with one another, clarify their understanding of underlying interests and concerns, identify the strengths and weaknesses of legal positions, explore the consequences of not settling, and generate

settlement options. An underlying assumption is that lawyers are frequently reticent about initiating settlement negotiations. Unlike many

trial proceedings, the typical federal appellate case presents few venues

or opportunities for the parties to meet and to discuss settlement, other

than the Rule 33 mediation conferences.

Helping litigants obtain outcomes not otherwise available

The mediations can be a forum for stimulating creative solutions that

often would not happen if the case followed the traditional path or if

the parties acted on their own. The mediations might even help parties

expand settlement discussions by going beyond the legal issues in the

case before the court of appeals. Mediation sometimes results in resolution of other litigation involving the same parties.

 5. Fed. R. App. P. 33, Advisory Committee Notes.
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

6

Conserving judicial resources

Judges are only minimally involved in these programs. Settling a case

early without judicial action helps reduce appellate docket pressures

and can save the time that judges would have devoted to briefs, oral

argument, and opinion writing. The Center has analyzed the benefits

derived from some of the federal appellate conference programs. For

example, the Center’s evaluation of the Sixth Circuit program in the

mid-1980s concluded that the program saved court and litigant resources by doing the work of 1.06 appellate judges and related staff.

6

Improving case management

Most programs focus on settlement but also address procedural issues

and case management. They often help parties simplify or clarify issues

and resolve procedural matters, eliminating the need for motions.

These steps have the potential to streamline the appellate process and

complement other case-management techniques.

7 This streamlining

can occur even when cases do not fully settle. For example, steps toward case management taken at the conclusion of mediation can improve the quality of any briefs or oral arguments that might be necessary, which, in turn, can expedite court decisions.

Comparing Program Features

In the 1980s, there was more variation in the structure and operation

of appellate mediation programs than there is today, but some differences remain. When designing and operating the programs, courts

consider many factors, including regional practices and the size of the

circuit. This section describes some similarities and differences between the programs’ features, but does not assess the merits of any approach.

 6. See James B. Eaglin, The Pre-Argument Conference Program in the Sixth Circuit

Court of Appeals 30–31; 41–42 (Federal Judicial Center 1990). See also Anthony Partridge & Allan Lind, A Reevaluation of the Civil Appeals Management Plan (Federal Judicial Center 1983); Jerry Goldman, An Evaluation of the Civil Appeals Management Plan:

An Experiment in Judicial Administration (Federal Judicial Center 1977).

7. See Judith A. McKenna, Laural L. Hooper & Mary Clark, Case Management Procedures in the Federal Courts of Appeals (Federal Judicial Center 2000). See also Thomas

E. Baker, Intramural Reforms: How the U.S. Courts of Appeals Have Helped Themselves, 22

Fla. St. U. L. Rev. 913 (1995); Restructuring Justice: The Innovations of the Ninth Circuit

and the Future of the Federal Courts (Arthur D. Hellman ed., 1990).
OVERVIEW OF FEDERAL APPELLATE ADR

7

Program names

The widely recognized precursor to the Rule 33 program is the Second

Circuit’s Civil Appeals Management Plan (CAMP), which was adopted

in 1974.

8 Initially, most federal appellate courts used the title preargument conference program, but, more recently, have used names such

as mediation program, office of the circuit mediator, and some variation of

settlement program and conference program. The 1994 revision of Rule 33

changed the caption of the rule from Prehearing Conference to Appeal

Conferences to “reflect the fact that occasionally a conference is held after oral argument.”

9

Case types in the programs

The programs range from those that include virtually all of a court’s

civil appeals (using that term broadly to include review of administrative orders)

10 to those that consider only specified categories of cases as

generally eligible for the program. None of the programs cover criminal cases. Few cover prisoner petitions or original proceedings, such as

petitions for writs of mandamus. Some programs will schedule mediation in certain otherwise ineligible civil appeals if one or more parties

request mediation.

The types of cases that constitute a court’s civil appellate caseload

and their frequency of occurrence differ from one court to the next. In

the Second Circuit, for example, habeas corpus petitions and petitions

for review of immigration cases substantially increased during 2002

and 2003. During 2003, about three-fourths of the cases mediated

were immigration appeals, and 60% of those cases were disposed of

through CAMP.

Some programs generally do not include cases in which a public

agency is a party, although most of these courts make exceptions if either party requests mediation or when other circumstances warrant referral to mediation. Changes in federal and state government policies

concerning alternative dispute resolution (ADR) led some appellate

mediation programs to refer more types of specific agency cases to

mediation. For example, as issued in 1996, Executive Order No.

 8. The Seventh Circuit Court of Appeals adopted a different type of pre-argument

program in 1972, which continued into the 1980s.

9. Fed. R. App. P. 33 Advisory Committee Notes.

10. Definitions for terms used in this sourcebook appear on page 1 supra.
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

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12988 provides that federal agencies are to “make reasonable attempts

to resolve [disputes] expeditiously and properly before trial.”

11 The Executive Order also states that ADR is “appropriate” if it will “materially

contribute to the prompt, fair, and efficient resolution of the claims.”

12

In the District of Columbia Circuit, where government entities are

frequent litigants, the appellate mediation program has been regularly

settling such cases. Because the court found that government attorneys

often could not secure sufficient authority to negotiate and settle certain types of agency cases, its program requires that someone with settlement authority be reachable by telephone during the mediation sessions.

Appellate mediation offices generally do not schedule pro se cases

for mediation because the circuit mediators have concerns that a pro

se party might view the mediator as an advisor or representative or as

imposing a settlement. In some appellate mediation programs, the program does not categorically exclude uncounseled cases from the mediation program; however, programs rarely refer cases to mediation if

one of the parties is not represented by counsel. The program in the

District of Columbia Circuit will refer to mediation a case with a pro se

party in particular circumstances, as determined by the program director. In such cases, the program director reports that the court of appeals would have to appoint counsel to represent the pro se party for

mediation purposes only. At the time this sourcebook was written, the

D.C. Circuit did not place its pro se representation policy in a local

rule. A local rule in the Third Circuit, however, provides that, in some

cases, the program director may request pro bono counsel to represent

pro se litigants for purposes of mediation only.

Case-selection processes

Because some program managers believe it is difficult to predict from

case documents alone which cases are likely to settle, some programs

schedule nearly all eligible civil appellate cases for mediation while

others select cases by random draw. Other program managers have developed criteria designed to select cases in which the prospects for

mediation appear to be brightest.

 11. Exec. Order No. 12988, 61 Fed. Reg. 4729 (1996).

12. Id.
OVERVIEW OF FEDERAL APPELLATE ADR

9

In the U.S. Courts of Appeals for the First and Second Circuits,

nearly all civil cases (including administrative agency cases) are scheduled for a civil appeals management conference, which generally includes mediation. In the Eleventh Circuit, all fully counseled civil appeals except prisoner, habeas corpus, and immigration appeals are eligible for mediation, but the program might exclude from assignment

some eligible appellate cases that do not appear conducive to settlement by mediation. The appellate mediation programs in the other circuits schedule mediation only in cases that appear likely to achieve settlement on some or all of the issues on appeal.

In these latter courts, circuit mediators or conference attorneys

might consider appellate settlement unlikely if the case involves an

agency with a cumbersome procedure for obtaining settlement authority or if one or more of the parties want to establish precedent through

judicial resolution of the issues on appeal. Other factors might be

whether the parties expressed interest in mediation, the complexity of

the case, and the amount of monetary relief requested.

Docketing statements filed by the parties generally provide information about the nature of the action, the result below, and the issues

on appeal. (Some courts refer to docketing statements as “appeal information statements” or “civil appeal statements.”) To determine a

case’s suitability for mediation, circuit mediators or conference attorneys might also review the judgment or order that is on appeal, any

related opinion below, the notice of appeal, district court docket

sheets, and relevant motions. In some courts, before assigning a case to

mediation, circuit mediators or conference attorneys not only review

case documents but also contact appellate counsel to evaluate the likelihood of settlement and the case’s suitability for the program.

Timing of the mediation

Most mediations occur at an early stage in the appeal, usually before

parties file their briefs. Generally, the mediation/conference office

schedules a conference shortly after the appellate case is docketed. In

most courts, briefing schedule orders are usually issued before the

conference. In nearly all courts, a briefing schedule may be adjusted if

progress toward settlement warrants it.

An underlying assumption in most appellate mediation programs is

that parties’ incentives for settlement often decrease as their briefing
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

10

and oral argument preparation progresses. Scheduling mediation early

gives parties the opportunity to settle before they incur the major expense of filing briefs and appendices. Furthermore, even if mediation

does not result in settlement, any narrowing or clarifying of issues

achieved because of mediation could benefit counsel in the briefing

process and might yield more effective oral arguments.

Courts that do not schedule or require mediation in all programeligible cases generally allow parties to request mediation at any time

during the case. Mediation offices routinely grant such requests in

non–prisoner civil cases in which all parties are represented by counsel. Some programs, however, occasionally allow prisoner cases into

the program if a party requests mediation and mediation appears to

have potential for settlement. Occasionally, appellate panels refer cases

to mediation just before or after oral argument.

Effect on appellate proceedings

The scheduling of mediation generally does not toll the time for filing

briefs or ordering transcripts or otherwise trigger an automatic stay of

appellate proceedings. If necessary, the mediator or, by motion, the

parties may arrange more time for filing briefs, transcripts, or other

matters. Some programs authorize the mediation/conference office to

dispose of a wide variety of procedural motions that arise in a case.

In-person and telephone sessions

In many of the programs, circuit mediators and conference attorneys

work with counsel to schedule a location and format convenient for

the mediation/conference participants.

Most programs hold a large portion of the conferences by telephone. The chief circuit mediators and conference attorneys in the

Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits

indicated that they conduct from 50% to 95% of their sessions by telephone. Factors that contribute to the frequency of telephone sessions

include the distances between the mediator and mediation participants

and the travel costs for in-person sessions.

Proponents of in-person mediation, on the other hand, maintain

that face-to-face interactions between the parties might help to bring

about settlement. In three relatively compact circuits (the First, Third,

and District of Columbia Circuits), most mediation sessions are held in
OVERVIEW OF FEDERAL APPELLATE ADR

11

person. However, even in those programs, distant locations of participants or other factors may require telephone conferences. The initial

mediation sessions in the Federal Circuit are held in person.

Mediation techniques

Programs use facilitative mediation techniques to help parties find solutions to the underlying problems that give rise to the litigation. After

any preliminary discussions with a party’s attorney to set up the mediation, a mediator usually begins mediation with a joint session, by discussing settlement jointly with all parties in the case. The mediator

then usually meets, one or more times, separately with each party to

facilitate settlement. These meetings are called caucuses, or private sessions. The mediator usually shuttles back and forth between the parties

if the mediator calls for more than one caucus with each party. Each

party’s attorney is always included in the joint sessions and in the caucuses for that party.

13

As stated in the First and Second Circuits’ program procedures, the

mediator also may make predictions about the outcome of the case if

the case were to go before an appellate panel. In those two circuits,

and in some others, the mediator also may recommend or suggest a

fairly specific negotiated settlement, possibly in the form of a scenario

or a hypothetical. Any predictions or recommendations on the merits

are simply nonbinding opinions of the mediator.

Mandatory versus voluntary participation

In nearly all programs, parties—or at least their attorneys—are required to participate in mediation if the conference office schedules

mediation in that case. Not every circuit program requires client attendance at the mediation sessions. Most programs do not have formal

provisions for removing a case from the program; however, a few

courts provide for removal of a case from the program either at a

party’s request or at the discretion of the mediator. In addition, some

 13. For a discussion of appellate mediation techniques that attorneys can use to

help facilitate their clients’ goals and assist the mediator or conference attorney in conducting the settlement conference, see Mori Irvine, Better Late Than Never: Settlement at

the Federal Court of Appeals, 1 J. App. Prac. & Process 341 (1999) (discussing ADR structure at the district and appellate court levels and proposing effective mediation strategies

for participating attorneys).
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

12

offices consider the willingness of the parties to mediate as a factor in

deciding which cases to refer to mediation.

In the Eighth and Federal Circuits, participation in mediation conferences is voluntary, meaning that all parties must consent to participate and that a party has the right to cancel a scheduled conference.

Settlement authority

Attorneys attending an appellate conference must obtain from their clients “as much authority as feasible to settle the case.” Many programs

strongly encourage the clients—not just their attorneys—to attend the

conference. When the party is a corporation or other entity, the party

often sends a company representative in addition to the attorney. Some

programs have guidelines governing settlement authority in these situations. For example, a company representative or government employee

who attends the mediation should have authority to settle. If settlement

authority is limited, the company representative or public employee

should have readily available the means to obtain approval of a settlement from company or government officials. Mediators might request,

or program rules may require, that the person with full settlement

authority be reachable by telephone during the mediation sessions.

Confidentiality

All of the program offices operate with confidentiality; the administration and operation of each program is separate from the court’s decision-making process. Local rules usually prohibit mediators, the parties, and the parties’ attorneys from disclosing the substance of a conference to any judge or non-party. Generally not considered confidential, however, are the fact that the mediation took place and the bare

results of the mediation (for example, settled, not settled, or continued).

Use of third-party neutrals

In nearly all of the programs, attorneys who are employees of the circuit court conduct the mediations. These attorneys have a variety of

titles in the programs, including circuit mediator, settlement counsel, conference attorney, and staff counsel. Courts report that most had experience or training in mediation and negotiation techniques before coming to the program. The courts also provide additional training.
OVERVIEW OF FEDERAL APPELLATE ADR

13

In some courts, senior federal judges or retired state judges mediate some of the cases. In the Third Circuit’s program, for example, senior circuit and district judges conduct mediations in about 10% of

cases, and the program director and the staff mediation attorney mediate the rest. The First and Fourth Circuits each hired a former state

court justice to facilitate conferences and to serve as program manager,

and the Fourth Circuit program has three circuit mediators. In the

Ninth Circuit, the mediator may refer a case to a circuit, district, or

magistrate judge for mediation in exceptional circumstances.

In the District of Columbia and Federal Circuits, the director of the

mediation program is a full-time employee of the court. These directors routinely assign cases to volunteer attorney–mediators who are

members of the local bar, are experienced in mediation skills, and

have been approved by the court for participation in the program. Occasionally, in the D.C. Circuit, the program director mediates or comediates a case. These two programs are the only ones among the federal courts of appeals that use volunteer mediators.

The Eleventh Circuit amended its local rules effective October

2004 to provide that, upon agreement of all parties, a private mediator

may be employed by the parties at their expense to mediate an appeal

that has been selected for mediation by the circuit’s Kinnard Mediation

Center.

Costs to parties

For the most part, appellate mediation/conference programs are available to appellate litigants at no charge. Each court of appeals funds the

administration of the program. In at least one court, the costs for telephone conferences are typically borne by the party initiating the call,

usually the appellant. For in-person sessions, parties bear their own

travel costs.

In the programs for the District of Columbia Circuit and the Federal Circuit, the mediators are not paid for their services. These courts

do reimburse mediators for some out-of-pocket expenses, however.
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3. Description of Programs,

Circuit by Circuit

First Circuit:

Civil Appeals Management Program (CAMP)

The U.S. Court of Appeals for the First Circuit identifies its mediation

conference processes as the Civil Appeals Management Program, or

CAMP. The court established CAMP in 1992.

Under CAMP, the court’s Office of Settlement Counsel conducts a

pre-argument mediation conference for most civil cases docketed in

the court. The office is located in the Office of the Circuit Executive.

An active circuit judge, with the assistance of the circuit executive,

oversees the program. The Office of Settlement Counsel in Boston

manages the program, with operational assistance from a program administrator. All CAMP-eligible cases are assigned to the settlement

counsel, who conducts the mediation conferences. The settlement

counsel also conducts conferences in the U.S. District Court for the

District of Puerto Rico, by scheduling as many conferences as he can

for each of his visits to Puerto Rico or by telephone.

CAMP’s primary goal is to encourage resolving appellate cases

without court action, allowing the court to make optimum use of its

limited resources while curbing litigants’ costs. The program is a means

to resolve open procedural matters, facilitate settlement, and identify

meritless appeals. In CAMP conferences, the settlement counsel sometimes makes outcome-based predictions on the merits or recommends

a specific negotiated settlement, which the parties are not required to

accept. If parties do not settle, CAMP potentially can simplify outstanding issues and accelerate disposition.

If the Clerk’s Office schedules a conference in a given case, participation in the conference process is mandatory—unless the information

supplied by the parties demonstrates, in the opinion of the settlement

counsel, that there is no reasonable likelihood of settlement in the

case. Such cases constitute a very small percentage of program-eligible

cases. All attorneys attending a conference must have full settlement

authority.
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

16

In calendar year 2003, the Office of Settlement Counsel held one

or more mediation conferences in 281 new cases. Federal Rule of Appellate Procedure 33 and First Circuit Rule 33 govern the program.

Selecting Cases for Conferences

Eligible case types

A CAMP-eligible case is any civil case docketed in the court except

original proceedings (such as petitions for writs of mandamus), prisoner cases (including habeas corpus petitions), immigration cases,

cases in which a party appears pro se, National Labor Relations Board

summary enforcement actions, and cases with unresolved jurisdictional problems. Among the many types of cases in the program are

bankruptcy appeals, tax cases, most agency cases (including those involving denial of Social Security benefits), and other petitions for review of administrative orders.

Upon receipt of case documents, the Clerk’s Office refers all

CAMP-eligible cases to the Office of Settlement Counsel, where they

are scheduled for mediation conference. Parties in non-eligible cases

may not request mediation.

When the court of appeals receives the notice of appeal or otherwise dockets the case, the Clerk’s Office notifies the appellant’s attorney that the notice of appeal has been received and docketed. For each

CAMP-eligible case, the Office of Settlement Counsel requires that the

appellant, within fourteen days after receiving the clerk’s notice, send

the office an appearance form, a docketing statement, and a transcript

order/report. The office also notifies all attorneys that they are required

to file a preconference memorandum that explains the basis for jurisdiction; the nature of the action; the issues to be raised on appeal; and

any case pending, or about to be brought, that arises from substantially

the same case or involves an issue substantially similar to one on appeal. CAMP rules direct the appellant to include copies of all judgments and accompanying memoranda that are the subject of the appeal.

Judicial selection

At any time during a case, a circuit judge may refer any matter to the

program upon motion or sua sponte. Occasionally, hearing panels refer cases just before or after oral argument.
FIRST CIRCUIT: CAMP

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Scheduling the Conferences

Scheduling process

The program administrator schedules a mediation conference and notifies attorneys in the case of the date and time. Consolidated and companion cases are scheduled for combined conferences. The program

administrator normally schedules a conference so that it is held at least

fourteen days before the appellant’s brief is due. The objective is to

hold the conference before the parties have made substantial investments of time and resources in the appeal.

Conference sites

The program holds about 80% of CAMP conferences in person, because program officials believe that in-person conferences are more

effective than telephone conferences in producing settlements. For inperson conferences, attorneys for each side of the appeal and, usually,

their clients travel to the site of the Office of Settlement Counsel. For

New England-based appeals, in-person conferences are held at the

John Joseph Moakley U.S. Courthouse, One Courthouse Way, Boston,

MA; for Puerto Rico-based appeals, conferences are held either at the

federal courthouse in Hato Rey or by telephone.

Mediation Submissions

CAMP does not require written mediation statements from the parties,

as some other mediation programs do.

Mediation Sessions

Nature of sessions

During the conference, the settlement counsel attempts to mediate a

resolution. At the beginning of the conference, the settlement counsel

instructs participants on the confidentiality rules and discusses procedural concerns and any motions the parties may wish to file. Attorneys

for both sides then present their respective positions on the issues

raised on appeal, and the settlement counsel makes comments and

poses questions. Attorneys must be fully prepared to discuss and evaluate the legal merits of each issue and to narrow, eliminate, or clarify

issues when appropriate. The settlement counsel sometimes makes

outcome-based predictions on the merits and, in appropriate situa-
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

18

tions, recommends a specific negotiated settlement, which the parties

are not required to accept.

After the joint session, the settlement counsel usually meets separately with attorneys for each side. These meetings, called caucuses,

include a candid appraisal of the likely outcome on appeal; exploration of each party’s interests; and solicitation of settlement proposals,

ideas, and offers. Mediation conferences conclude when the parties

reach an agreement or impasse. Follow-up conferences are arranged to

pursue negotiated settlements fully.

Any other matters, including pertinent matters raised by the parties, may be discussed if the settlement counsel determines that discussing them may have a positive effect on the mediation. Such matters

might be procedural—such as staying execution on the district court

judgment—or they might be substantive—for example, negotiating a

global settlement of cases pending in other courts.

Party participation

Unless attendance by a party-client or party representative is excused

with the express, prior approval of the settlement counsel, the program

rules require that all persons necessary to make a decision to resolve

the matter (including the party-client’s attorney and the party-client or

the party-client’s representative with full settlement authority) attend

the entirety of the initial mediation conference until a settlement is

reached or the settlement counsel declares a recess or an impasse. Mediation conferences after the initial conference may be held with or

without party-clients, as necessary to pursue negotiated settlements

fully; all attorneys and party representatives attending these conferences are required to have full settlement authority.

The program rules direct all parties to participate in the settlement

conference process in good faith, that is, with the intention to attempt

to settle on a basis agreeable to all parties.

Number and length of sessions

The Office of Settlement Counsel schedules conferences to last for at

least two hours unless there is a specific reason to plan a longer or

shorter time period. The office reports that initial conferences run generally from one to three hours. The initial conference might last as long

as three hours, or longer, if progress toward resolution continues to be
FIRST CIRCUIT: CAMP

19

made. After the initial conference, the settlement counsel may schedule

one or more follow-up telephone or in-person conferences, with or

without party-clients. Follow-up discussions might continue for days

or weeks. For most cases, one or two joint conferences per case are

sufficient.

Fees

CAMP does not charge parties or attorneys for the costs of the conferences.

Post-conference procedures

If the parties achieve a settlement, the settlement counsel asks the parties to execute a stipulation of dismissal, which is filed in the Clerk’s

Office.

If CAMP does not resolve a case, the program administrator sends

a memorandum of non-settlement to the Clerk’s Office for the appellate case file and also to the referring panel in those cases in which a

hearing panel of judges referred the case to the program. An unsettled

case remains on the docket and proceeds as if the mediation conference process had never occurred. Even though the case does not settle

fully, the conference may result in a request to the court for the issuance of a post-conference order, such as a stipulated order to narrow

the issues to be briefed and argued.

The settlement counsel keeps records concerning agreements made

during the conference process, including the parties’ agreement to file

a dismissal stipulation. The program administrator monitors the filing

of papers related to those agreements and follows up on any items not

received within the time set at the conference. Follow-up may include

telephone calls or letters to attorneys.

Other Rules, Policies, or Practices

Effect on appellate proceedings

The briefing schedule set by the Clerk’s Office runs concurrently with

the conference process. The scheduling of a pre-argument conference

does not automatically stay any aspect of the appellate proceedings.

If the need arises, the settlement counsel may recommend that parties file a motion to extend the time for filing briefs, transcripts, or

other documents. The court generally approves motions that the set-
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

20

tlement counsel recommends and, if necessary, the clerk issues an

amended scheduling order. The filing of a procedural or substantive

motion may cause the settlement counsel to reschedule the conference.

Confidentiality

Local Rule 33 prohibits the settlement counsel from disclosing the substance of the conference. It also bars attorneys from doing so, except to

their party-clients or cocounsel, and then only after receiving assurance that they will honor the confidentiality of the information. The

settlement counsel directs each party to make express representation in

its preconference memoranda as to whether the party, party representative, attorney, and other person assisting such party or attorney will

maintain confidentiality with respect to settlement communications

made or received during or in connection with the conference. The

CAMP rule excludes from the confidentiality requirement the fact that

the conference took place, the bare results of the conference (for example, “settled,” “continued”), and any resulting post-conference

memorandum or order entered on the docket.

Sanctions

If the court’s rules are violated, the settlement counsel may send the

clerk a recommendation for sanctions. The court decides what sanctions, if any, to impose.

Grievances

Any grievances as to the handling of a case in the program are sent to

the circuit executive to be addressed by the court of appeals. The circuit executive and the court of appeals hold all such grievances confidential, unless the complainant authorizes release of them.

Recusal

In a case in which the settlement counsel recuses himself, the chief

judge may designate a judge to act as the “settlement counsel” and hold

a mediation conference in a case. The new settlement counsel might be

a judge from the First Circuit or from any other circuit, as long as that

judge does not sit on the appellate panel for that case.
FIRST CIRCUIT: CAMP

21

Reports and evaluation

The Office of Settlement Counsel keeps internal records for use in preparing statistical reports on the program.

For More Information

Contact Hon. Neil Lynch, Settlement Counsel, U.S. Court of Appeals

for the First Circuit, One Courthouse Way, Room 3440, Boston, MA

02210, telephone: 617-748-9339.

Websites:

www.ca1.uscourts.gov/camp.htm

www.ca1.uscourts.gov/files/rules/rules.pdf (see Local Rule 33)
This page is left blank intentionally to facilitate printing of this document

double-sided.
23

Second Circuit:

Civil Appeals Management Plan (CAMP)

The U.S. Court of Appeals for the Second Circuit inaugurated its Civil

Appeals Management Plan (CAMP) in 1974. Under CAMP, the court’s

Office of Staff Counsel conducts a conference, also referred to as mediation, for most counseled civil cases. The Office of Staff Counsel is

part of the Office of Legal Affairs of the Second Circuit. The director of

the Office of Legal Affairs oversees the Office of Staff Counsel. There is

one senior staff counsel and two other staff counsel. Office staff includes a conference administrative supervisor, a legal assistant, and a

clerical assistant.

Staff counsel are required to have the skills necessary to perform as

impartial mediators who promote agreements acceptable to all parties;

educate parties on law and practice in the Second Circuit; encourage

each side to hear and understand the arguments, needs, and concerns

of the other; meet privately with attorneys when necessary to get beyond legal positions to a discussion of interests; resolve procedural

problems informally; and issue scheduling orders to promote expeditious case disposition.

CAMP’s purposes are to encourage case settlement, thereby reducing the number of cases being briefed and orally argued before the

court; to prevent unnecessary motions or delay; to resolve procedural

problems; and to identify, clarify, and simplify any issues submitted to

the court. In addition, a major CAMP goal is to provide the litigants

with a problem-solving forum, namely, the mediation conferences.

That forum is specifically designed to determine the essential needs, or

interests, of each party and to forge an amicable agreement that satisfies the parties more fully than a court-imposed resolution of their

conflict.

The Second Circuit believes that, to further its stated goals, the success of each conference depends on the attorneys treating it as a serious and effective procedure that can not only save time and expense

for the parties, but also provide an outcome better suited to the needs

and interests of the parties.

Attendance at CAMP conferences is mandatory for attorneys except

when a staff counsel specifically authorizes telephone conferences.
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

24

CAMP rules require that attorneys attending these conferences have full

settlement authority.

CAMP held one or more conferences in 982 cases in 2002, 1,331

cases in 2003, and 2,604 cases in 2004. In 2003, 1,010 of the cases

that staff counsel referred to conference were immigration appeals, and

in 2004, 1,015 of them were immigration appeals. The Office of Staff

Counsel conducts CAMP under Federal Rule of Appellate Procedure

33, Rule 5 of the Civil Appeals Management Plan (CAMP), and Second

Circuit Rules Appendices C and D.

Selecting Cases for Conferences

Eligible case types

Every civil appeal in which all parties are represented by counsel or

are proceeding pro se and have a law degree is a CAMP-eligible case.

These cases include appeals from final judgments and orders of the

district courts and the U.S. Tax Court, bankruptcy appeals, petitions

for review of federal administrative orders (e.g., National Labor Relations Board cases, Board of Immigration Appeals cases), and certain

appeals of interlocutory decisions under 28 U.S.C. § 1292(b).

Upon receipt of case documents, the Clerk’s Office refers all

CAMP-eligible cases to the Office of Staff Counsel. The office schedules

a pre-argument conference in all cases, with exceptions, including petitions for mandamus, prohibition, asylum or non-immigration habeas

corpus cases. CAMP cases scheduled for conference are referred to as

conference-eligible cases.

Referral of civil appeals to a staff counsel is usually done by random assignment, but companion and consolidated cases are assigned

to the same staff counsel, and new cases involving cases previously addressed by CAMP are assigned to the staff counsel most familiar with

them.

Documents reviewed

The staff counsel receives case documents from the Clerk’s Office prior

to the conference, including the notice of appeal, district court docket

entries, and the completed pre-argument statement form that the appellant must file with the clerk within ten calendar days after docketing

of the appeal. The court-provided pre-argument statement form requires information about the basis of jurisdiction, the nature of the ap-
SECOND CIRCUIT: CAMP

25

peal, the result appealed from, the issues proposed to be raised on appeal, and the standard of review for each issue, as well as a copy of the

relevant judgment, order, or opinion in the case below.

Judicial selection

Occasionally, hearing panels refer cases to the program before or after

argument but before decision.

Scheduling the Conferences

Scheduling process

Shortly after the Clerk’s Office refers a case to CAMP, a staff counsel

issues to the parties’ attorneys a “pre-argument conference notice” and

a scheduling order for briefing. Generally, the Office of Staff Counsel

schedules the conference for two to three weeks after the staff counsel

issues the pre-argument conference notice. The objective is to hold the

conference before the parties have made a substantial investment of

time and capital in the appeal.

Conference sites

Conferences in approximately half of the cases referred to CAMP are

conducted in person, and the others are conducted by telephone or

videoconference. The staff counsel assigned to the case decides how

the conference will be handled. In-person conferences are generally

held at the Thurgood Marshall United States Courthouse in Manhattan.

Often, an in-person conference is followed up by telephone, or an inperson follow-up may be scheduled. The clients are not ordinarily required to appear for the conference but are expected to be available

for discussion, by telephone, for example. If a sufficient number of

cases can be scheduled for the same location, staff counsel may hold

conferences in other locations within the circuit for purposes of efficiency and economy.

Mediation Submissions

The Office of Staff Counsel does not require written mediation statements from the parties, as some other mediation programs do.
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

26

Mediation Sessions

Nature of sessions

The functions of the staff counsel are to act as an impartial mediator

seeking an agreement that is acceptable to all parties, to educate parties

on law and practice in the court of appeals, to meet privately with each

side when appropriate, and to resolve procedural problems informally

and expeditiously.

The staff counsel usually begins the conference by explaining the

conferencing procedures and discussing the rules of confidentiality.

Typically, the substantive discussion begins with the staff counsel’s

seeking to establish whether the court has jurisdiction. The parties’ attorneys then present their respective positions on the issues raised on

appeal, and the staff counsel asks questions and sometimes comments

substantively.

After listening to both sides, the staff counsel may give a nonbinding advisory opinion on the merits or other aspects of the appeal. In

some cases, this may include a recommendation that the appeal be

withdrawn. The staff counsel makes clear that the views expressed are

the staff counsel’s only and not the court’s. CAMP rules stipulate that

the parties are not required to reach an agreement.

If settlement or withdrawal has not been tentatively agreed to at the

initial conference, the staff counsel may ask for a follow-up discussion

or may instruct the lawyers for one or both sides to consult with their

clients and report back by a specific date. The clients may also be required to participate in any follow-up conferences.

The staff counsel may also resolve procedural matters, including,

for example, a consensual stay of the district court judgment; a stipulation on an expedited argument schedule; an agreement on the contents

of a joint filing of a deferred appendix; or a recommendation for tandem review or consolidation of cases. Resolving such matters often obviates the need for written motions.

Party preparation and participation

The court of appeals requires that all sides be thoroughly prepared to

discuss, in depth, at the conference the legal, factual, and procedural

issues in the case. The court also requires that, prior to the conference,

attorneys discuss with their clients the matters, issues, and interests involved in the case; ascertain the clients’ goals in resolving the litigation;
SECOND CIRCUIT: CAMP

27

and seek to moderate goals that are clearly unrealistic. The court directs attorneys to be prepared to negotiate in good faith and express

their views on both the merits of their case and the clients’ interests.

Attorneys who attend the mediation should be those who have the

greatest influence with the clients and the broadest authority from

those clients, including advance authority to make such agreements as

may reasonably be anticipated for the mediation process.

The staff counsel may ask attorneys to be prepared to cite cases in

support of their positions and may ask them to bring to the conference

the most important decisions they will rely on in the appeal.

Clients normally do not accompany their attorneys to the initial

conference. Clients may attend only with the permission of the staff

counsel or if the staff counsel requests or, in exceptional circumstances, requires that they attend. The staff counsel must not speak

with any party outside the presence of that party’s attorney.

Number and length of sessions

Initial in-person conferences generally are scheduled at intervals of one

to one and a half hours but sometimes may last several hours. Initial

telephone conferences may be shorter. Based on input from the parties’

attorneys, the staff counsel may conduct follow-up conferences or

telephone conferences. Follow-up discussions may continue for days

or weeks.

Fees

The program does not charge party-clients or attorneys for the costs of

the conferences. The appellants usually set up long-distance telephone

conferences, and the costs are typically borne by the party initiating the

call.

Post-conference procedures

If the parties achieve a settlement, the staff counsel will ask the parties

to execute a dismissal stipulation to close the case. If the case cannot

be resolved through the conference process, it remains on the docket.

In cases in which there is a reasonable likelihood that the appeal may

ultimately be withdrawn before a panel’s decision, the parties may

stipulate to withdraw the appeal from active consideration with leave

to reactivate by a certain date.
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

28

Immigration cases

When a CAMP-eligible non-asylum immigration case—that is, a case

in which the petitioner is represented by counsel—is filed with the

court, the Clerk’s Office issues a scheduling order that only contains

the date the administrative record is due. When the record arrives, the

entire case is referred to the staff counsel, who sets the case for conference. The Office of Staff Counsel developed this process because it was

difficult to conference the immigration cases without records, and the

Executive Office of Immigration Review had a tremendous backlog of

requests for producing records. When CAMP receives the records, a

pre-argument conference notice is sent to the parties’ attorneys with a

scheduling order, as is done for other CAMP cases. All the other rules

pertaining to CAMP conferences apply to immigration cases.

In 2005, the Second Circuit instituted the asylum Non-Argument

Calendar (NAC), which handles all the fully briefed asylum cases filed

with the court, whether counseled or pro se. Conferences in fully

counseled asylum cases are no longer automatically referred to CAMP,

but parties are free to request a conference that will be arranged right

away but will not delay the briefing schedules. Attorneys may request

that a case be referred to the Regular Argument Calendar (RAC). The

court may also refer a case to the RAC for oral argument and possibly

further briefing.

The staff counsel attempts to conference a number of immigration

cases on a particular day with the U.S. Attorney’s Office, and the petitioners’ attorneys. If the government will agree not to deport the petitioner during the pendency of the action, any stay motions will be removed from the motions calendar, thus obviating the need for a panel

to decide the motions, and a merits panel to consider the appeal.

Other Rules, Policies, or Practices

Effect on appellate proceedings

When a case is referred to conferencing, CAMP does not automatically

stay other activities in the case. The staff counsel is authorized to dispose of a wide variety of procedural motions that arise in a case (e.g.,

motions to file oversize briefs or supplemental appendices). The staff

counsel may grant extensions of time for filing briefs for good cause

shown, but the policy of the court is to grant such motions sparingly.
SECOND CIRCUIT: CAMP

29

See United States v. Delia, 925 F.2d 574 (2d Cir. 1991); United States

v. Raimondi, 760 F.2d 460 (2d Cir. 1985). Further applications for

extensions of time may be referred to an applications judge. Pursuant

to the July 6, 2004, Notice to Second Circuit Litigants, the staff counsel’s authority to grant extensions of time are limited, in most circumstances, to thirty days for each side.

Confidentiality

CAMP rules prohibit the staff counsel, the attorneys, and the parties

from communicating to the court or any unauthorized third parties actions taken at the conference or the substantive discussions, including

the views of the staff counsel. The court strictly enforces this rule. See

Calka v. Kucker Kraus & Bruh, 167 F.3d 144, 145 (2d Cir. 1999); In

re Lake Utopia Paper, Ltd., 608 F.2d 928, 930 (2d Cir. 1979) (finding

that the appellate panel “deplore[d] any compromising of the confidentiality of [staff counsel’s] comments by counsel for a party to the

appeal”).

Sanctions

The CAMP rules authorize sanctions against any party who fails to appear for the mediation or otherwise participate fully. The rules also direct the clerk, if the appellant fails to comply with a pre-argument conference order, to issue a notice that the appeal will be dismissed unless

the appellant files an affidavit within ten days explaining the failure and

indicating when it will take the necessary action. The staff counsel prepares a memo on which the chief judge or designee may take “appropriate action.”

Appellees who fail to timely comply with scheduling or other conference orders are subject to appropriate court sanction as provided in

the Federal Appellate Rules and Second Circuit Rules.

Grievances

CAMP rules require grievances regarding the handling of a case to be

presented to the director of the Office of Legal Affairs, who will hold

them in confidence pending any action by the court, unless the complainant authorizes release.
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

30

Recusal

CAMP rules direct staff counsel to recuse themselves from cases that

they believe would present a conflict of interest or that for any other

reason might make their service in a particular case inappropriate.

Reports and evaluation

CAMP administrative staff developed and implemented a case-tracking

system that generates monthly statistical reports for the chief judge, including the number of cases that were received, that went to conference, and that resulted in disposition. The monthly reports separate

statistics for the large volume of immigration cases from those for other

civil appeals (see “Immigration Cases” supra).

For More Information

Contact Elizabeth Cronin, Director, Office of Legal Affairs, telephone:

212-857-8800

Frank J. Scardilli, Senior Staff Counsel, telephone: 212-857-8765

U.S. Court of Appeals for the Second Circuit

Thurgood Marshall United States Courthouse

40 Foley Square

New York, NY 10007

Website: www.ca2.uscourts.gov (Click on “Legal Affairs Office,” then

click on “Staff Counsel”)
31

Third Circuit:

Appellate Mediation Program

Under the Appellate Mediation Program for the U.S. Court of Appeals

for the Third Circuit, the mediation office selects from the pool of eligible cases those that seem most amenable to mediation and settlement. The director, in cooperation with the clerk of court, manages

the program, which began in 1995. Organizationally, the Appellate

Mediation Program office is a separate unit of the court. The director

reports to a proctor judge (a circuit judge appointed by the court to be

liaison between the court and the director) and to the chief judge of

the court of appeals. The director and staff mediation attorney have an

administrative assistant and a legal assistant.

The Third Circuit has chosen to draw on the experience of senior

judges within its circuit to supplement the mediation work of the program director and the staff mediation attorney. Senior circuit and senior district judges from the Third Circuit serve as mediators for approximately 10% of the cases selected for mediation; the program director and staff mediation attorney mediate the rest. The mediator for a

given case is selected by the program director.

Having senior judges mediate in the program enables the court to

mediate more cases without the expense of employing additional mediators. In addition, the senior judges are an excellent resource for

matching the right case to the right mediator. For instance, a senior

judge located in the Newark area can conduct a mediation conference

with northern New Jersey-based litigants, rather than requiring the parties to travel to the Appellate Mediation Program’s principal office in

Philadelphia. Similarly, a particular case may be well suited for mediation by a particular judge because of the judge’s background or experience with the subject matter of the case.

The purpose of the Appellate Mediation Program is to facilitate settlement and otherwise facilitate the expeditious handling of the appellate caseload. The program also is designed to maximize both judicial

economy and cost savings to the parties.

Generally, once the mediation office schedules mediation, participation in the program is mandatory. The clients are required to attend

mediation with their attorneys.
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

32

The Appellate Mediation Program held one or more conferences in

349 cases in 2002, 342 cases in 2003, and 341 cases in 2004. The

program is governed by Federal Rule of Appellate Procedure 33 and

Third Circuit Rule 33.0.

Selecting Cases for Mediation

Eligible case types

Nearly all appeals in which all parties are represented by counsel are

eligible for the Appellate Mediation Program. The only case types not

eligible, whether or not the parties are represented by counsel, are

original proceedings, prisoner petitions (including habeas corpus petitions), and Social Security, immigration, and black lung cases.

Third Circuit Rule 33 provides that, in appropriate cases, the mediation office may request pro bono counsel to represent pro se litigants for purposes of mediation only.

The Clerk’s Office sends to the mediation office for review and

possible mediation only those cases that are eligible for mediation under the program. From those eligible cases, the program director selects cases for mediation, based on the nature of the cases, the issues

involved, and the director’s prior experience. If uncertain whether a

case is appropriate for mediation, the director may talk to the attorneys

in the case to get their views on the likelihood of settlement.

Cases may enter the mediation program at the request of one or

more parties at any time during an appeal. These confidential requests

may be made by telephone or letter to the program director, who generally grants them. Requests made after briefing and designation of a

hearing panel, however, need the approval of the court.

Documents reviewed

The mediation office receives the following case documents: the judgment or order on appeal, any related opinion, the notice of appeal, entries of appearance, district court docket sheets, and relevant motions.

The office also receives forms completed by the appellant, including a

Civil Appeal Information Statement and a concise summary of the case.

Judicial selection

Third Circuit Rule 33 provides that “any judge or panel of the court

may refer any appeal, petition, motion or other procedural matters for
THIRD CIRCUIT: APPELLATE MEDIATION PROGRAM

33

review and possible amicable resolution.” The court may make such a

referral to mediation at any time during the course of an appeal.

Removal from the program

In exceptional cases (and for good cause shown), counsel may request

that a case be removed from the mediation program. All such requests

are made to the program director.

Scheduling the Conferences

Scheduling process

The Clerk’s Office forwards eligible cases to the mediation office, usually within four weeks of the filing of the notice of appeal. Within one

week and usually within two days after receipt of an eligible case, the

program director reviews the case file and decides whether it presents

issues capable of being mediated and settled. The program director

then mails to the parties’ attorneys and the clerk a Notice of Assignment for Mediation, which identifies the mediator and instructs the

parties on their preparation of confidential position papers. The notice

sets forth the date and time for the mediation.

The mediation office assigns a mediator to each case selected for

mediation. If the director assigns a case to a senior judge, the mediation office sends notice also to the senior judge. For cases not selected

for mediation, attorneys receive a briefing schedule from the Clerk’s

Office.

The mediation office schedules conferences as soon as practical

after the director assigns a case to a mediator. The initial conference is

held before issuance of the briefing order.

Conference sites

The director encourages in-person mediations. In assigning cases, particularly those assigned to senior judges, the director considers the

geographic proximity of the parties’ attorneys and the mediator. Generally, conferences conducted by the director or staff mediation attorney are held in the Appellate Mediation Program’s offices in Philadelphia. Occasionally, the director travels to other cities within the circuit

to conduct in-person mediation. Conferences conducted by a senior

judge are held in that judge’s chambers. Telephone conferences are
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

34

used when it is not feasible for the parties to travel to Philadelphia or

to the location of a senior judge mediator.

Mediation submissions

Within fifteen days of notice of the assignment to mediation, attorneys

for each party must prepare and submit to the mediator a confidential

position paper of no more than ten pages that states the attorney’s

views on settlement, describes prior settlement discussions, and identifies other issues or lawsuits that must be resolved to settle the case.

Neither the appellate panel nor opposing counsel sees the position papers.

Mediation Sessions

Nature of sessions

The purpose of the mediation conference is to consider the possibility

of settlement and any other matters that the mediator determines may

facilitate the handling or disposition of the proceeding. The mediator

works with the parties in an attempt to get at the real problems or interests behind the legal issues, to facilitate efforts to settle the case, and

to create an amicable solution. The mediation conference usually includes joint sessions, in which all parties and the mediator meet together in the mediation room, and private sessions, in which the mediator meets with parties separately. Related issues or lawsuits not on

appeal may also be considered.

Party participation

The mediation notice directs the attorneys and the parties to attend the

mediation conference. The senior attorney responsible for each party

to the appeal and the person or persons with actual authority to negotiate a settlement must also attend the mediation conference.

Number and length of sessions

Mediation conferences last an average of two to three hours. At the

conclusion of the initial session, the mediator determines whether additional conferences are necessary and notifies the parties of and

schedules any necessary follow-up conferences.
THIRD CIRCUIT: APPELLATE MEDIATION PROGRAM

35

Fees

The program does not charge parties or attorneys for the costs of the

conferences.

Post-conference procedures

The director reports any settlement reached by the parties to the clerk

and sends all attorneys a letter outlining its fundamental terms. The letter also offers help finalizing any written settlement agreement and

fixes a due date for filing a stipulation of dismissal of the appeal with

the clerk. Attorneys must file the stipulation with the clerk, and a copy

with the director, within thirty days after settlement is reached. The director’s assistant monitors due dates for dismissal stipulations. If the

parties do not settle, the director notifies the clerk that the mediation

was unsuccessful, and the Clerk’s Office issues a briefing order.

Other Rules, Policies, or Practices

Mediation in pro se cases

Third Circuit Rule 33 provides that, in appropriate cases, the mediation office may ask attorneys to represent pro se litigants for purposes

of mediation only. An attorney must agree to take the case on a pro

bono basis. However, if an applicable statute authorizes the award of

attorneys’ fees, the attorney may enter into a written agreement with

the client, assigning to the attorney any amounts designated as attorneys’ fees. The rule directs that the case be treated as any other case

subject to mediation would be and that all its provisions will apply. If

mediation is unsuccessful, the attorney may discontinue representation, but the rule does not bar representation through the rest of the

appeal if the attorney agrees to it.

Effect on appellate proceedings

Generally, the Clerk’s Office does not issue a briefing order if the mediation office selects a case for mediation. If the scheduling of additional conferences or telephone discussions is required to explore settlement fully, the mediator may continue to postpone issuance of the

briefing order.

The court designed the program to minimize delay by requiring a

swift case selection process and conferencing schedule. Cases not se-
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

36

lected for mediation are promptly returned to the Clerk’s Office. Once

the director selects a case and a mediator, the mediator effectively asks

the parties to stop litigating and focus on the mediation. Mediated

cases that do not settle return to a full briefing schedule.

Confidentiality

All mediation communications are confidential. Court rules prohibit

the mediator and attorneys from disclosing the substance of the mediation conference to any person, including the court. Attorneys may disclose information on an as-needed basis to any party-clients and cocounsel who are not personally participating in the mediation, if they

get assurances that these recipients of the information will honor the

confidentiality rules.

Documents prepared for mediation conferences are not to be filed

with the Clerk’s Office except for a stipulation of dismissal or a notice

of unsuccessful mediation. If a case does not settle, the director destroys all mediation files for that case. If a case does settle, however,

the terms of the settlement are not considered confidential unless the

parties agree otherwise.

Sanctions

Failure of an attorney to comply with the requirements of the mediation program could result in sanctions.

Reports and evaluation

The director maintains data on the number of cases referred to the

program, the number of cases mediated, and whether those mediations

resulted in settlement. For an extensive law review article on the Appellate Mediation Program, see Joseph A. Torregrossa, Appellate Mediation in the Third Circuit—Program Operations: Nuts, Bolts, and Practice

Tips, 47 Vill. L. Rev. 1059 (2002) (foreword by the Hon. Edward R.

Becker, former chief judge of the U.S. Court of Appeals for the Third

Circuit).
THIRD CIRCUIT: APPELLATE MEDIATION PROGRAM

37

For More Information

Contact Joseph A. Torregrossa, Director, Appellate Mediation Program,

U.S. Court of Appeals for the Third Circuit, 601 Market St., Room

20716, Philadelphia, PA 19106, telephone: 267-299-4130.

Website: www.ca3.uscourts.gov/medhome.htm
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Fourth Circuit:

Mediation Program

The Circuit Mediation Program for the U.S. Court of Appeals for the

Fourth Circuit, which began operations in 1994, provides a mediation

setting in which litigants and their attorneys can confidentially discuss

their pending case on appeal with a trained neutral circuit mediator.

The Office of the Circuit Mediator reviews all eligible cases shortly after

docketing to determine whether a pre-argument mediation conference

might assist the court or the parties.

Program staff are the chief circuit mediator and one support person in Beaufort, S.C., two circuit mediators and the program administrator in Durham, N.C., and one circuit mediator in Charlottesville,

Va. The chief circuit mediator reports that the program is headquartered in Beaufort, rather than at the seat of the court of appeals in

Richmond, Va., because separating the judges of the court from the

mediation program and its management helps to further the goal of

confidentiality.

Each mediation conference is conducted by one of the four circuit

mediators. Although the process of assigning cases to the circuit mediator is generally random, the chief circuit mediator may assign a case

on the basis of the location of a circuit mediator and lead counsel in

the case.

Court personnel report that the circuit mediators are experienced

and specially trained attorneys and mediators. They are informed neutrals who can facilitate discussions by parties in a case in a confidential, risk-free environment, so that the parties can evaluate the case

candidly and explore possibilities for voluntary disposition of the appeal. The mediators are trained to give significant attention, when necessary, to procedural questions and problems raised by attorneys in a

case.

Program objectives include reducing the caseload of circuit judges,

thereby saving taxpayer money as well as time and money for the parties.

Only cases in which attorneys represent all parties are eligible for

the program. If the Clerk’s Office schedules a conference in a given

case, attorney participation in the conference is mandatory. All attor-
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

40

neys attending a conference must have authority to initiate and respond to settlement proposals.

The program held at least one mediation conference in 675 cases

in fiscal year 2002, 600 cases in fiscal year 2003, and 623 cases in fiscal year 2004. The mediation program is governed by Federal Rule of

Appellate Procedure 33 and Fourth Circuit Rule 33.

Selecting Cases for Mediation

Eligible case types

All docketed civil cases are eligible for the program. Exceptions are

habeas corpus petitions, certain cases involving a government agency

as a party, and cases in which a party is appearing pro se. Original

proceedings, such as mandamus petitions, are not mediated unless an

appellate panel requests it. On rare occasions, the mediation program

accepts prisoner civil rights cases in which the prisoner is represented

by an attorney.

Selection process

Shortly after receiving the docketing statement from the Clerk’s Office,

the circuit mediators screen all eligible cases to assess whether mediation will help the court or the parties. The circuit mediators consider

any potential interest in settling, including whether a party requested

mediation; the complexity of the case; the monetary relief requested;

and the nature of the issues (for example, constitutional issues might

not be appropriate for mediation, whereas issues of monetary damages

might be). Occasionally, a circuit mediator may talk to the parties’ attorneys about prospects for settlement before selecting a case for mediation.

The Office of the Circuit Mediator encourages attorneys for the litigants in a case to request a conference if they believe mediation will be

helpful. A small but increasing percentage of cases are scheduled for

mediation at the request of a party. The Office of the Circuit Mediator

screens the cases and accepts almost all civil cases in which a party requests mediation and the parties are represented by attorneys. A party

may request a mediation conference at any time during an appellate

case.

At any time after the beginning of the first mediation session, the

circuit mediator may terminate mediation proceedings if he or she
FOURTH CIRCUIT: MEDIATION PROGRAM

41

concludes that further participation in the program would not be

beneficial.

Documents reviewed

Upon filing of the notice of appeal, the Clerk’s Office sends the parties

a docketing statement form, information concerning the Circuit Mediation Program, and procedures for requesting a mediation conference.

The appellant must file with the clerk a completed docketing statement

form that identifies the issues to be raised on appeal, lists relevant citations to governing statutes or dispositive cases, and includes any order

or judgment that is the subject of the appeal. For each programeligible case, the Clerk’s Office sends the Office of the Circuit Mediator

the docketing statement form and related papers filed by the parties.

Judicial selection

Occasionally, judicial panels refer cases to the program before or after

oral argument.

Scheduling Mediation

Scheduling process

For cases selected for mediation, the Office of the Circuit Mediator

gives written notice of the conference to the parties, usually within

seven days after receiving the case, and assigns the case to a circuit

mediator. To maximize the reach of the program and provide the earliest possible intervention point, the office reschedules conferences

only in exceptional circumstances or when there is a conflict with a

court hearing or trial. Consolidated appeals and appeals in companion

cases are generally consolidated for mediation. Nearly all mediation

conferences are scheduled for a date before briefs are due.

Conference sites

More than 95% of the mediation conferences are telephone conferences in which the circuit mediator initiates the calls. In-person mediation conferences are scheduled at the direction of an appellate panel,

at the request of the parties, or as determined by the Office of the Circuit Mediator. Mediation offices are located in Beaufort, S.C.; Durham,

N.C.; and Charlottesville, Va. When a case involves attorneys at locations not too far from Beaufort, Durham, or Charlottesville, in-person
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

42

conferences may be scheduled at the mediation offices in one of those

cities. Circuit mediators travel to mediation sites at other locations only

on rare occasions—for example, if the circuit mediator determines that

an in-person mediation conference is essential but a party is unable to

travel.

Mediation submissions

The mediation program does not require written mediation statements

from the parties, as some other mediation programs do.

Mediation Sessions

Nature of sessions

Objectives of the mediation conferences include identifying and clarifying the main issues raised in the appeal, exploring settlement possibilities, preventing unnecessary motions or delay by attempting to resolve any procedural problems, and considering any other matter relating to the management and disposition of the appeal. Although the

mediation conference may give significant attention to procedural

questions and problems raised by attorneys, its primary purpose is to

offer participants a confidential, risk-free opportunity to evaluate their

case candidly, with an informed neutral, and explore whether settlement is possible.

Before a conference, the circuit mediator usually reads the district

court opinion, if any, as well as cases cited in the docketing statement

form. Lead counsel are asked to be prepared to articulate their views

of the merits of the case as well as their clients’ interests and needs.

Generally the circuit mediator facilitates or leads an exploration of settlement with each party, often in private meetings, called caucuses. The

circuit mediator works to generate offers and counteroffers until the

parties settle or, if the case cannot be settled at the conference, until

the parties can determine how far apart they are. The circuit mediator

does not predict how the court will rule on any issue or on the appeal

as a whole.

Party participation

The court’s mediation rule requires participation of all lead counsel of

record if the case is referred to the program. The rule does not require
FOURTH CIRCUIT: MEDIATION PROGRAM

43

clients to participate in most initial mediation sessions, although they

may.

The Office of the Circuit Mediator expects attorneys attending the

mediation conference to have authority to initiate and respond to settlement proposals, but circuit mediators do not necessarily expect

them to have absolute settlement authority. The circuit mediator sometimes invites participation by individuals or groups who are not parties

to the appeal if the purposes of the mediation conference cannot be

achieved without their involvement.

Number and length of sessions

Initial telephone conferences last, on average, forty-five minutes to one

hour; initial in-person conferences last an average of three hours. In

some cases, discussions end after the initial conference, but almost always there is more than one conference, as well as many separate follow-up telephone calls between the circuit mediator and each attorney

before agreement is finally obtained. Follow-up discussions may continue for days or weeks.

Fees

The program does not charge parties or attorneys for the costs of the

mediation conferences.

Post-mediation procedures

The mediation conference must not result in any action affecting the

interests of any party, or the case on its merits, without the consent of

all parties. If the parties agree to settlement, the circuit mediator gives

the appellant’s counsel a motion for entry of dismissal. Once the motion is signed and returned to the Office of the Circuit Mediator, the

circuit mediator forwards it to the clerk, who enters the dismissal and

closes the case.

If the mediation process does not result in dismissal of the case, the

Office of the Circuit Mediator returns the case to the clerk for further

appellate proceedings.
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

44

Other Rules, Policies, or Practices

Effect on appellate proceedings

Although the mediation process does not automatically toll the time

allowed for filing briefs, parties who want to pursue settlement or are

engaged in settlement discussions may move to suspend or extend the

briefing schedule for a reasonable time. Program personnel report that

circuit mediators may grant an extension if all parties consent to it, if

the mediator determines that significant progress toward settlement is

occurring, and if an extension is likely to facilitate a settlement. The

circuit mediators report that extending briefing schedules can sometimes indeed facilitate settlement. In extraordinary circumstances, the

circuit mediator may extend the due date of a brief in the absence of

consent by opposing counsel.

In addition, the circuit mediator may send the clerk recommendations for other consent orders that control the course of proceedings or

that may dispose of the case. Examples include an order staying the

appeal until a motion in the district court is ruled on and an order

staying the appeal until another case is decided.

Confidentiality

Fourth Circuit Rule 33 requires confidentiality of “all participants in

the mediation process” and directs that all statements and comments

made during mediation conferences, and papers and electronic information generated in the process, neither be included in court files except by court order nor disclosed to the judges deciding the appeal “or

to any other person outside the . . . program participants.” The appellate docket sheet contains no record of the mediation conference process, and the Office of the Circuit Mediator’s files and computer database are not accessible to other units of the court. The court of appeals

applied the court’s mediation rule in In re Anonymous, 283 F.3d 627

(4th Cir. 2002), holding in part that an attorney who was in a mediation conference but not acting as counsel was nevertheless bound by

the confidentiality requirement.

The court keeps confidential any request by a party for a mediation

conference and the reason for the request; however, requesting parties

may disclose their request at their option.
FOURTH CIRCUIT: MEDIATION PROGRAM

45

Sanctions

The circuit mediator has no authority to impose sanctions. However, if

a party refuses to participate in a mediation conference, unreasonably

delays the scheduling of a conference, or otherwise unreasonably impedes the conduct of the program, the circuit mediator may recommend that the court initiate disciplinary action. The court’s Standing

Order 01-01 vests in the Standing Panel on Attorney Discipline the

authority to rule on any issues that may arise in mediation, including

alleged violations and applications for exceptions to Local Rule 33.

Reports and evaluation

The Office of the Circuit Mediator conducts periodic internal evaluations of the program and makes quarterly reports to the chief judge.

For More Information

Contact William T. Howell, Chief Circuit Mediator, U.S. Court of Appeals for the Fourth Circuit, 1501 Bay Street, POB 1286, Beaufort, SC

29901, telephone: 843-521-4022.

Website: www.ca4.uscourts.gov/mediation.htm
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Fifth Circuit:

Appellate Conference Program

The U.S. Court of Appeals for the Fifth Circuit launched an appellate

conference program in November 1996. The court’s Office of the Appellate Conference Attorney comprises the senior conference attorney,

four other conference attorneys, and support staff. The staff’s duties include office management, case-related work as assigned by conference

attorneys, and liaison with the Clerk’s Office and other court units. Organizationally, the office is a separate unit of the court, physically and

administratively distinct from other court offices. The senior conference attorney manages the program under the direction of the court.

One of the judges has been appointed proctor for the conference program, but has no access to confidential information about conference

proceedings.

Court personnel report that the five conference attorneys are all experienced lawyers who come from a wide variety of backgrounds.

They were selected because of their ability to analyze the kinds of situations that arise in appellate litigation and their skills in resolving disputes through interaction with attorneys and litigants. All of the conference attorneys have had formal training or substantial experience in

mediation, negotiation, and the settlement of litigation. Nevertheless,

the program also provides in-house training.

The conference attorneys conduct all conferences in the program.

The conference program also provides procedural assistance to parties

who want to use the services of an outside mediator, but the program

does not select, approve, or recommend particular mediators. Occasionally, two conference attorneys handle cases on a team basis. Conference attorneys often assist each other by providing consultation and

second opinions.

The purposes of the conferences include discussion of settlement;

clarification and reduction of issues; and consideration of any other

matter relating to the efficient management and disposition of the appeal. If the parties are engaged in settlement discussions, the conference attorney may reset the briefing schedule. The conference attorney

may also arrange for or recommend the entry of other orders controlling the course of proceedings.

The lead counsel are required to participate in any scheduled con-
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

48

ference, and the conference attorney may also require attendance by

clients or their corporate representatives. However, a party may decline to participate in settlement discussions by submitting a formal

written request for removal from the program.

The conference program is governed by Federal Rule of Appellate

Procedure 33 and the General Order Governing the Appellate Conference Program Effective March 27, 2000 (the “General Order”).

Selecting Cases for Conferences

Eligible case types

All civil cases docketed in the court are considered eligible for selection into the program, with the exception of prisoner cases and cases

in which at least one party appears pro se. The conference program

usually does not schedule Social Security and immigration matters for

conferences because the conference attorneys do not consider such

cases conducive to settlement except in unusual situations.

Conferences are held in almost all of the court’s eligible cases. The

senior conference attorney reviews cases that are eligible for the program, after they clear the court’s jurisdictional review. He assigns cases

to particular conference attorneys on the basis of a number of factors,

including the attorneys’ caseloads and the subject matter of the cases. A

party may request inclusion in the program at any time. The senior

conference attorney generally grants the request in any eligible case.

Documents reviewed

The conference attorney might also review information contained in

the district court’s docket sheet, the opinion below, and other pleadings that the conference attorney may request from the district court.

Judicial selection

Occasionally, judicial panels refer cases to the program.

Removal from the program

The General Order permits any party to ask the conference attorney, in

writing, to terminate settlement discussions or to remove the case from

the program. The rule directs the conference attorney to honor the request in cases that the senior conference attorney selected for the program, and to restrict any further proceedings to the program’s other
FIFTH CIRCUIT: APPELLATE CONFERENCE PROGRAM

49

purposes. If the court referred the case to the program, a party’s request for removal goes to the court, and conference proceedings are

stayed pending the court’s directions.

Scheduling the Conferences

Scheduling process

The conference attorney assigned to a case sends the lead attorneys a

letter setting the date and time for the conference and explaining the

purposes of the program. The letter is usually sent within two weeks of

the filing of the notice of appeal and ten days to two weeks before the

conference date. Conferences may be rescheduled when necessary at

the request of a party. In some cases, a less formal process is used, in

which the conference attorney assigned to the case contacts the lawyers

directly (and separately) by telephone.

Conferences are ordinarily set for a date well before briefs are due.

Conference sites

Most conferences are conducted by telephone. The conference attorney assigned to the case initiates and controls the initial conference,

which is used to assess what kind of further conference proceedings

will best serve the needs of the case. The conference attorney will accept case-related calls whenever he or she is available. Much of the

telephone follow-up is accomplished through two-party calls initiated

either by the conference attorney or by the attorneys, rather than

through scheduled conferences involving all parties. If all counsel have

offices near New Orleans, they may be invited to an initial conference

in the conference attorney’s office. Likewise, the preferred method of

attempting to reach settlement is a follow-up mediation conference in

New Orleans for both the lawyers and party-clients or representatives.

Travel to New Orleans would involve too much expense in many

cases, however, and in the majority of cases, follow-up conferences are

held by telephone.

Mediation submissions

The Office of the Appellate Conference Attorney does not require written mediation statements from the parties, as some other mediation

programs do.
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

50

Mediation Sessions

Nature of sessions

At the initial conference, the conference attorney sets out the ground

rules, emphasizes the confidentiality rules, and answers questions

about the conference procedures. Counsel for the parties explain their

views on the issues raised on appeal, and the conference attorney

makes comments and poses questions. The conference attorney facilitates each side’s understanding of the issues on appeal and may meet

(caucus) with each party separately, exploring each party’s interests

and soliciting settlement ideas, with a view toward planning further

settlement-related efforts.

The conference attorney may also help the parties resolve procedural issues. Since cases ordinarily continue beyond the initial conference, the conferences conclude with a discussion of next steps in the

negotiations, which might include follow-up conferences, submission

or exchange of information, or a discussion between the attorneys and

their clients. In some cases, the conference attorney concentrates on

helping resolve complicated procedural issues rather than acting as an

active participant in settlement negotiations. In those situations, the

conference attorney acts as a liaison between the attorneys and the

court, and the conference procedures are adapted to the requirements

of the situation.

Party participation

The lead counsel for each of the parties is required to participate in

any conference, subject to the right to request removal of the case from

the program under certain circumstances, as described supra under

“Removal from the program.” The conference attorney may also require attendance by the clients or their corporate representatives.

Number and length of sessions

Initial telephone conferences last up to two hours; initial in-person

conferences last as long as necessary. After the initial conference, the

conference attorney conducts follow-up conferences with the attorneys

and with or without clients, as necessary.
FIFTH CIRCUIT: APPELLATE CONFERENCE PROGRAM

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Fees

The program does not charge parties or attorneys for the costs of the

conferences.

Post-conference procedures

If the conference results in settlement, the case is disposed of through

motions to dismiss or other appropriate motions. Cases that do not settle proceed normally on the court’s docket, and the conference attorneys monitor the cases in order to assess the results of efforts to narrow

the issues and to take advantage of any later opportunity to reopen negotiations.

Other Rules, Policies, or Practices

Effect on appellate proceedings

Absent the consent of all parties, the conference process may not result

in any actions that affect the interests of any party or the case on its

merits. While the conference attorney has practical control over scheduling the conferences, no automatic stay or delay results from a case

being made active in the conference program.

Confidentiality

The General Order requires confidentiality as to all program settlement

discussions and directs the conference attorney, the parties, and their

attorneys not to disclose information about settlement discussions to

the court or to anyone else who is not entitled to know. There is an

exception for information that may be admissible in a proceeding to

enforce a settlement agreement.

The order also directs the parties’ attorneys and the clerk not to

make public information about the assignment of particular cases to

the program. It does permit a party to release such information (but

not information about settlement discussions) “for good cause” and absent an explicit agreement to the contrary, as long as the disclosure is

not part of an effort to gain an advantage over another party. The penalty for an improper disclosure is the removal of the case from the program. The order permits telling the court about cases assigned to the

program in statistical reports, in response to inquiries, and in connection with recommendations about procedural orders.
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

52

Sanctions

The General Order provides that sanctions may be assessed against a

party or attorney who fails to comply with conference procedures.

Reports and evaluation

The Office of the Appellate Conference Attorney keeps internal records

for use in preparing statistical reports on the program.

For More Information

Contact Joseph L. S. St. Amant, Senior Conference Attorney, U.S. Court

of Appeals for the Fifth Circuit, John Minor Wisdom U.S. Courthouse,

600 Camp Street, Rm. 229, New Orleans, LA 70130, telephone: (504)

310-7799.

Websites:

www.ca5.uscourts.gov/acap.aspx

www.ca5.uscourts.gov/clerk/docs/order.pdf
53

Sixth Circuit:

Mediation Program

The U.S. Court of Appeals for the Sixth Circuit established a PreArgument Conference Program on a trial basis in 1981 and implemented the permanent program in 1983. During the 1990s, the permanent program became known as the court’s mediation program.

The court’s mediation office consists of the chief circuit mediator,

four circuit mediators (three full-time equivalents), the conference

administrator, and two secretaries. The office is a separate unit of the

court, and is physically and administratively separate from other court

offices, although its budget and personnel records are administered by

the Circuit Executive’s Office. The chief circuit mediator manages the

program under the policy direction of the court, usually through the

chief judge. The conference administrator’s duties include managing

the clerical operations of the office, scheduling the conferences, and

monitoring due dates for briefs and other filings.

Court personnel report that in selecting mediators, the court seeks

attorneys who have a working knowledge of law, legal analytical and

problem-solving skills, group process and facilitation skills, maturity,

and good judgment. All mediators complete a mediation or negotiation training course within the first year of their employment; most

have attended a one-week program at Harvard University. The mediation office also provides in-house training and encourages other continuing education in the mediation and negotiation fields and in the

areas of substantive law typically involved in cases in the program.

The primary purpose of the program is to facilitate settlement. The

program also seeks to identify, clarify, and simplify issues; resolve procedural problems to prevent unnecessary motions or delays; and consider other appropriate case-management measures.

The court’s local rules require that all parties to the appeal participate in scheduled mediation conferences, at least through their attorneys.

The mediation office schedules conferences in 80% or more of

mediation-eligible appeals and holds conferences in nearly all cases so

scheduled. In recent years, the mediation office has scheduled about

1,000 cases per year for mediation conferencing. Federal Rule of Ap-
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

54

pellate Procedure 33 and Sixth Circuit Rule 33 govern the mediation

conference process.

Selecting Cases for Mediation Conferences

Eligible case types

By Local Rule 33, all civil cases docketed in the court are eligible for

the program. In practice, however, the mediation office generally does

not schedule a mediation conference in prisoner cases; tax appeals

(from the district court and the U.S. Tax Court); agency cases, such as

review of administrative orders from the Social Security Administration

(SSA) and National Labor Relations Board; cases in which there are

motions pending; cases in which any necessary party appears pro se;

and cases with unresolved jurisdictional problems.

Generally, the mediation office first reviews a computer-generated

report from the court’s Appellate Information Management System to

identify available cases. The office then reviews the jurisdictional

screening forms, sent by the Clerk’s Office, to avoid scheduling mediation in cases with evident jurisdictional defects. After reviewing these

documents, the mediation office randomly schedules mediation conferences in as many mediation-eligible cases as the resources of the office will allow.

A party may request a conference anytime before the court calendars the case for oral argument. The mediation office generally grants

the request in any non–prisoner civil appeal in which all parties are

represented by counsel. Upon docketing of a case, the Clerk’s Office

sends all parties a package of case-opening materials that includes, for

program-eligible cases, a separate form that a party may use to request

a mediation conference. The mediation office keeps such requests confidential, but the requesting party need not keep a request confidential.

Documents reviewed

Attorneys for the parties send the mediation office a completed Civil

Appeal Statement of Parties and Issues. The statement identifies the

parties to the appeal and the primary issues on appeal. Usually, circuit

mediators also review the opinions or decisions below, when they are

available, to prepare for mediation in the cases to which they are assigned.
SIXTH CIRCUIT: MEDIATION PROGRAM

55

Judicial selection

Occasionally, judicial panels refer cases to the program just before or

after oral argument, either by contacting the mediation office directly

or by directing the parties to do so.

Scheduling Mediation Conferences

Scheduling process

For cases selected for mediation, the mediation office sends lead attorneys a notice setting the date and time for the mediation conference

and explaining the purposes of the program. Ordinarily, the mediation

office sets conferences for a date before briefs are due. The notice is

usually sent two to three weeks before the conference date. An entry is

made on the court’s docket noting that the appeal is in the program.

Conferences may be rescheduled when necessary at a party’s request.

The court’s local rules require all parties to the appeal to participate in

scheduled mediation conferences, at least through their attorneys.

Conference sites

The circuit mediators conduct over 90% of all conferences by telephone, and they initiate the calls. Circuit mediators conduct conferences in person in Cincinnati, usually at the courthouse of the court of

appeals, if all the attorneys work within roughly fifty miles of Cincinnati, if the attorneys request an in-person conference, or if the circuit

mediator believes that an in-person meeting will be more effective.

Circuit mediators conduct in-person conferences outside Cincinnati on

rare occasions, such as when large numbers of people in the same city

must participate.

Mediation submissions

The mediation office requires attorneys for each party to submit a

completed Mediation Background Information Form. The form, which

attorneys must submit at least five business days before the date of the

initial conference, is only to be reviewed by the mediation office. The

form asks for contact information for all attorneys who will be participating in the conferences on behalf of the submitting attorney’s clients;

the name of the lead attorney; the names of the clients the attorney will
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

56

be representing; and the names and positions of the attorney’s clients

or client representatives who will be participating in the conferences.

The form also asks for additional information that the mediation

office will not share with the other parties or their attorneys. This confidential information includes any specific interests or concerns, other

than money, that the attorneys would like the mediation to address;

the primary obstacles to settlement to date; and anything else that the

attorneys can tell the circuit mediator before the conference that might

enable the mediator to be more helpful or efficient.

Mediation Sessions

Nature of sessions

In the initial mediation conference, the circuit mediator reviews the

ground rules, explains the confidentiality requirements, and answers

questions about court rules and procedures. Attorneys for the parties

explain their views on the merits of the claims, the issues raised on appeal, and their clients’ interests. The circuit mediator guides the discussion, commenting and questioning as necessary. The circuit mediator

tries to facilitate each party’s understanding of the issues on appeal and

usually caucuses with each party separately, exploring each party’s interests and soliciting settlement ideas, offers, and counteroffers.

In about 25% of the cases, settlement is clearly impossible and negotiations go no further than the initial conference, although the circuit

mediator may help the parties resolve procedural issues before the

conference ends. In cases that continue beyond the initial conference,

the conferences conclude with agreement on the next steps in the negotiations, which might include follow-up conferences or briefing extensions.

Party participation

If the mediation office schedules a conference, the program requires

that lead attorneys for all parties participate in the conference. The attorneys are expected to come with an understanding of their clients’ interests in settlement and authority to make and respond to settlement

proposals. Circuit mediators encourage attorneys to invite their clients

to participate in initial conferences, but do not require participation.
SIXTH CIRCUIT: MEDIATION PROGRAM

57

Number and length of sessions

Initial conferences last an average of one to one and one-half hours.

Approximately 25% of scheduled cases do not go beyond the initial

conference. In the balance of cases, after the initial conference, the circuit mediator conducts follow-up telephone or in-person negotiations,

with the attorneys and with or without clients, as necessary to thoroughly explore all settlement possibilities.

Fees

The program does not charge parties or attorneys for the costs of mediation.

Post-mediation procedures

If the mediation conference results in settlement, the parties sign a

stipulation to dismiss the appeal or a joint motion to remand. When

the mediation office receives the signed papers, it prepares the order of

dismissal or other appropriate order and sends the completed papers

to the clerk for entry.

If the parties resolve one or more procedural issues, such as a revised briefing schedule, the circuit mediator enters the agreed-on due

dates on the case docket and notifies the Clerk’s Office.

Other Rules, Policies, or Practices

Effect on appellate proceedings

The mediation conference process does not automatically stay other

events or filing deadlines in a case. However, the mediation office may

extend deadlines for ordering the transcript or for briefing as necessary

to allow parties to avoid unnecessary litigation expenses if the case settles. Typically, briefing is extended so that the first brief is due no earlier than ten days after the date scheduled for the conference. If negotiations continue productively and all parties and the circuit mediator

agree, the circuit mediator may further postpone briefing for a reasonable time until negotiations are completed. The conference administrator in the mediation office monitors cases for briefing due dates, status

reports, submission of stipulations on settled issues, and other events.

Motions during the conference process are rare. When briefing

motions or other procedural motions are filed, the Clerk’s Office typi-
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

58

cally refers them to the mediation office. Circuit mediators often facilitate the parties’ agreement on such motions, but if the parties cannot

resolve the motion by agreement, the Clerk’s Office handles the motion

as it would any other contested motion.

Confidentiality

By court rule, the statements and comments made by the parties and

the circuit mediator during the conference, and in all follow-up communications, are confidential and may not be disclosed to the court in

briefs or argument unless all parties and the circuit mediator give their

consent.

The fact that a conference was scheduled is entered on the docket

to facilitate coordination of the case within the court, but whether the

conference actually occurred, what happened at it and resulted from it,

and events in the mediation conference program are not entered on

the docket or in case files. Files relating to the conferences are kept

separate from case files of the court of appeals.

Sanctions

If a party or attorney fails to comply with mediation procedures, the

court may assess sanctions, including costs and attorneys’ fees, or dismiss the appeal.

Reports and evaluation

The Federal Judicial Center published an evaluation of the court’s preargument conference program in 1990; see James B. Eaglin, The PreArgument Conference Program in the Sixth Circuit Court of Appeals

(Federal Judicial Center 1990). See also generally Roselle L. Wissler &

Robert W. Rack, Jr., Assessing Mediator Performance: The Usefulness of

Participant Questionnaires, 2004 J. Disp. Resol. 227; Robert W. Rack, Jr.,

Thoughts of a Chief Circuit Mediator on Federal Court-Annexed Mediation,

17 Ohio St. J. on Disp. Resol. 609 (2002) (regarding issues and methods for ensuring quality in a staff mediation program); and Robert W.

Rack, Jr., Pre-Argument Conferences in the Sixth Circuit Court of Appeals,

15 Tol. L. Rev. 921 (1984) (description of settlement negotiations at

the appellate level and of the court’s program in 1984).
SIXTH CIRCUIT: MEDIATION PROGRAM

59

For More Information

Contact Robert W. Rack, Jr., Chief Circuit Mediator, U.S. Court of Appeals for the Sixth Circuit, 245 Potter Stewart U.S. Courthouse, 100 E.

Fifth St., Cincinnati, OH 45202, telephone: 513-564-7330.

Website: www.ca6.uscourts.gov/internet/mediation/index.htm
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Seventh Circuit:

Settlement Conference Program

The Settlement Conference Office in the U.S. Court of Appeals for the

Seventh Circuit schedules about seven out of ten eligible appeals for

mediation conferences. The Settlement Conference Office selects most

of the cases scheduled, but sets some appeals for conference at the request of one or more parties. Three full-time conference attorneys conduct the conferences. They include the senior conference attorney,

who also administers the program. In addition, the Settlement Conference Office includes two administrative assistants. The program operates under the general supervision of the chief judge and the circuit executive.

Court personnel report that in selecting the conference attorneys,

the court seeks experienced lawyers with the skills and temperament

needed to help litigants overcome obstacles to settlement. All conference attorneys the court appoints have been civil litigators in private

practice.

The Seventh Circuit implemented the appellate Settlement Conference Program in November 1994. The program became fully operational in January 1995.

14

The purpose of the program is to encourage and facilitate the settlement of civil cases docketed in the court of appeals. As part of the

conference process, the conference attorneys explore the possibility of

settlement, address procedural issues with the parties, and modify

briefing schedules as necessary.

Participation by the attorneys, with their clients if the Settlement

Conference Office so directs, is mandatory in any conference the office

schedules under the program, as explained further below.

From 500 to 600 cases are scheduled for appellate settlement conferences annually. The program operates pursuant to Federal Rule of

Appellate Procedure 33 and Seventh Circuit Rule 33.

 14. A previous conference program, initiated in 1972, continued into the 1980s.
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

62

Selecting Cases for Conferences

Eligible case types

Program-eligible case types include all docketed civil cases except pro

se, prisoner, and Social Security cases, and original proceedings. Immigration cases are not regularly noticed for conference but are sometimes conferenced by request. Cases with unresolved jurisdictional

problems are excluded from the program if it appears that appellate

jurisdiction will not be established.

The senior conference attorney reviews all program-eligible cases.

He determines which cases will not be set for a conference, considering primarily the nature of the dispute. If issues of policy or statutory

construction predominate, it is less likely that the case will be set for

mediation.

Generally, party requests for mediation are accepted in any program-eligible appeal. Requests may be made by telephone, letter, fax,

or e-mail to the Settlement Conference Office. A written motion is not

necessary. If a party requesting a conference tells Settlement Conference Office staff that it prefers to keep its request confidential, the Settlement Conference Office will not disclose it to other parties or to the

court.

Documents reviewed

Before an initial conference, the conference attorney becomes familiar

with the appeal by reading the short record of the case, which consists

of the notice of appeal, the docketing statement (a statement setting

forth the basis of jurisdiction, which the appellant must file with its notice of appeal or at least seven calendar days thereafter), the district

court docket sheet, and the decision appealed from. Often the conference attorney reviews additional portions of the record and conducts

preliminary legal research.

Judicial selection

Judges do not ordinarily refer cases to the settlement program.
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63

Scheduling the Conferences

Scheduling process

The Settlement Conference Office sends attorneys for all parties a Notice of Rule 33 Conference, which advises them of the date and time of

the conference, whether it will be in person or by telephone, and how

they and their clients are expected to prepare.

The Settlement Conference Office schedules conferences as soon

after docketing the appeal as the office’s calendar permits. The conference attorney usually extends merits briefing as necessary to permit the

litigants to focus on settlement.

Conference sites

When all participants reside in the Chicago metropolitan area, conferences are usually held in the Settlement Conference Office. Conference

attorneys conduct in-person conferences outside Chicago only occasionally. The majority of mediation conferences are conducted by telephone. The conference attorneys report that telephone conferences

have been as productive as in-person conferences in bringing about

settlements.

Preconference submissions

The Settlement Conference Office does not ordinarily require attorneys

to submit a pre-argument statement other than the docketing statement

described above. However, the Settlement Conference Office occasionally asks attorneys to furnish copies of designated pleadings or opinions from the district court before the initial conference.

Mediation Sessions

Nature of sessions

At the initial mediation conference, the conference attorney gives some

attention to procedural matters, but the primary purpose of the conference is to explore possibilities of settlement. The focus is on realistically assessing the prospects of the appeal, the risks and costs of further

litigation, the interests of the parties, and the benefits each side can

gain through settlement.

The conferences are official proceedings of the court but are relatively informal. Discussion is conversational rather than argumentative.
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

64

The conference attorney ordinarily meets with the attorneys first in a

joint session and then separately in meetings referred to as caucuses.

Although they discuss settlement proposals at the initial conference,

settlement might not be reached at that conference. Often, the conference attorney schedules follow-up conferences. By the conclusion of

the process, the parties either have reached an agreement to settle or

have learned how far apart they are and what obstacles to settlement

remain.

If settlement of the appeal will not dispose of the entire case, or if

related litigation is pending in other forums, the parties are invited and

encouraged to explore the possibility of a global settlement.

Party participation

The program requires that each party be represented at the conference

by an attorney who is conversant with the case and on whose advice

the party relies. If two attorneys meet these criteria, either or both of

them may represent the client in the conference. Whether to settle is

the decision of each party, but the program requires good-faith participation in the settlement process.

The program’s procedures require that party-clients and insurance

representatives, in addition to attorneys, attend conferences whenever

the Settlement Conference Office so directs. For example, the office often directs parties to participate in a joint follow-up conference or in

separate meetings (caucuses) with their attorneys and the conference

attorney. When the office has not directed parties or insurance representatives to attend the initial conference, they must be available by

telephone—with full settlement authority—for the duration of the conference.

Number and length of sessions

Initial conferences, whether in-person or on the telephone, often last

two hours or more. Participants are expected not to schedule competing activities for the morning or afternoon of the conference. Most initial conferences are followed by additional conversations. Subsequent

conferences with all attorneys may be required.
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Fees

The program does not charge for the costs of the settlement conferences.

Post-conference procedures

If the parties achieve a settlement, the conference attorney provides the

attorneys with a form of agreed motion to dismiss the appeal, but attorneys are free to document the settlement in any form mutually acceptable to them. Although the conference attorney may assist in devising specific language to be used in memorializing the settlement, the

conference attorney does not otherwise participate in drafting settlement documents.

If a case cannot be resolved through the conference process, the

appeal proceeds in the ordinary course. After briefing has been completed, the conference attorney may renew contacts with the attorneys

to explore again any possibilities of settlement. However, the assistance

of the conference attorney is not available on the eve of or after oral

argument.

Other Rules, Policies, or Practices

Effect on appellate proceedings

The court’s preliminary consideration of its jurisdiction and attorneys’

filing of jurisdictional memoranda, when ordered, are not ordinarily

stayed pending the outcome of the settlement conferences, nor is briefing on the merits automatically suspended. By circuit rule, the standard

briefing schedule begins on the date the appeal is docketed in the

court of appeals. Except in agency cases, there is no initial briefing

schedule order. Merits briefing is ordinarily extended until thirty days

following the initial conference to permit the litigants to focus on settlement. The conference attorney may further extend the time for briefing or stay the appeal if that will facilitate negotiation and settlement.

Confidentiality

Although the scheduling of a mediation conference is a matter of public record, the substance of all discussions held under Rule 33 is not.

The Notice of Rule 33 Conference sets forth the court’s confidentiality

rule, and at the beginning of the initial conference, each participant
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

66

expressly agrees to hold the content of the conference proceedings in

the strictest confidence. As part of this agreement, all participants, including the conference attorney, are forbidden to disclose to any judge

or other court personnel what is said in the conferences or in any related conversations or correspondence.

If a party requesting a conference tells Settlement Conference Office staff that the party prefers to keep its request confidential, the Settlement Conference Office will not disclose it to other parties or to the

court.

Sanctions

The court has not promulgated rules governing sanctions for misconduct in connection with settlement conferences under the program,

nor has the court had occasion to impose such sanctions. However,

the court has specifically held that an attorney’s refusal to make a party

available for discussions with the conference attorney is sanctionable.

Recusal

It is the conference attorneys’ practice to recuse themselves from cases

in which they believe they would have, or appear to have, a conflict of

interest. At or before the conference, the conference attorney discloses

any affiliation or prior representation he or she is aware of that could

call his or her neutrality into question.

Reports and evaluation

The senior conference attorney reports frequently to the court on the

progress of the program. For purposes of ongoing program assessment

and to facilitate independent evaluation of the program, the Settlement

Conference Office maintains a database of information on cases selected for conferences, including the subject matter of the appeal, the

disposition at the trial level, the number of contacts between the conference attorneys and the litigants, and the outcome of the settlement

conferences.

In 1978–1979, the Federal Judicial Center conducted a study of

the court’s prehearing conference program, the predecessor of the

court’s current settlement conference program. See generally Jerry Goldman, The Seventh Circuit Preappeal Program: An Evaluation (Federal

Judicial Center 1982).
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For More Information

Contact Joel N. Shapiro, Senior Conference Attorney, U.S. Court of

Appeals for the Seventh Circuit, 219 South Dearborn Street, Room

1120, Chicago IL 60604, telephone: 312-435-6883.

Website: www.ca7.uscourts.gov/conf_aty/
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Eighth Circuit:

Settlement Program

The U.S. Court of Appeals for the Eighth Circuit established the appellate Settlement Program in 1981. The director of the program reviews

all program-eligible cases filed in the court of appeals and looks for

settlement potential.

The director manages the program. An assistant performs clerical

and other tasks, such as initial screening for cases that do not meet

program criteria, retrieving district court opinions when not furnished

with the case file, and obtaining updated information from the Clerk’s

Office. The Settlement Program is a separate unit of the court; the director reports to the chief judge and to the court generally through a

judge committee.

The court reports that the director of the Settlement Program serves

as the sole mediator for the court at all conferences. The court’s rule,

however, provides that a senior district judge on special assignment

from the chief judge may mediate cases in the Settlement Program. The

court reports that this provision has not been used in many years.

Court personnel report that the director is a lawyer with an extensive background in mediation, negotiation, and general litigation. Before joining the court’s program in 1983, the director was a mediator

with the Federal Mediation and Conciliation Service.

The primary purpose of the program is settlement—to reduce the

judges’ workload and to assist the parties in consensual resolution. The

program also is designed to limit or clarify issues on appeal as a byproduct of settlement discussions.

Participation in the Settlement Program is completely voluntary.

The program director held joint mediation conferences in 68 cases

in 2002, 76 cases in 2003, and 63 cases in 2004. In addition, approximately 60% of an additional 320 cases in 2002, 316 cases in

2003, and 323 cases in 2004 involved separate discussions with one

or more parties to determine whether they would be scheduled for a

joint mediation conference. These discussions occur when the documentation filed by the parties with the appeal is lacking or is unclear

about a willingness to participate. The program is governed by Federal

Rule of Appellate Procedure 33 and Eighth Circuit Rules 3B and 33A.
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

70

Selecting Cases for Conferences

Eligible case types

Nearly all counseled civil cases are eligible for the Settlement Program

except Social Security, disability, immigration, and tax cases; cases

dismissed for lack of jurisdiction; cases with unresolved appellate jurisdictional problems; original proceedings (e.g., mandamus petitions);

certified interlocutory appeals and appeals of injunctions under 28

U.S.C. § 1292; and prisoner cases.

At its inception, the program concentrated on monetary cases.

Currently a large number of cases in the program are in the employment field and involve summary judgment disposition by the trial

courts.

The director selects cases that appear appropriate for settlement

discussions after reviewing documents from the Clerk’s Office, placing

special importance on any trial court opinions and any settlement interest indicated on the appeal information form, which parties generally file with the Clerk’s Office. If a party indicates a lack of interest, a

conference is not scheduled, except by subsequent consent of the parties. In most cases, the director telephones the parties’ attorneys to determine interest in settlement and to arrange conferences. Frequently

the director discusses highlights of the issues on appeal with each party

to gain insight before scheduling the mediation conference.

In large monetary cases that offer some potential for settlement, the

director schedules joint conferences by agreement of the parties. In

apparently uncomplicated cases involving smaller dollar amounts, the

director may schedule a joint telephone conference by letter without

prior contact with counsel. The letter states that participation is voluntary and a party has the right to cancel a conference. Typically, one or

more parties in these cases have indicated, on the appeal information

form, a willingness to participate in the Settlement Program.

When contacted by the director, attorneys sometimes indicate that

direct settlement negotiations are under way and they want to defer

participation in the program until concluding their own efforts. In

these situations, absent a subsequent joint request by the parties, the

director will not maintain further contact. Normally, there is not

enough time to allow for both the direct negotiations and a programscheduled conference before the parties become substantially involved
EIGHTH CIRCUIT: SETTLEMENT PROGRAM

71

in the briefing and argument preparation process, which works against

settlement efforts (see “Number and length of sessions,” infra).

The director reports that he does not generally contact attorneys in

cases involving state or federal agencies, because the public interests

involved frequently are not subject to compromise and government

attorneys often lack the authority for or an interest in settlement. The

director also sometimes screens out private-sector cases with policy or

precedential considerations not amenable to a settlement effort (for example, insurance declaratory judgment actions and antitrust cases).

However, if a governmental or private-sector entity expresses an interest in settlement on the appeal information form, the director normally

will attempt to obtain agreement from all parties to schedule a settlement conference.

Although the program functions primarily before briefing is begun,

parties may ask to participate at any time. The director then schedules

a conference if possible. For example, attorneys occasionally request a

conference during or after preparation of their briefs in a case that the

director had previously screened out for lack of interest.

Documents reviewed

The Clerk’s Office sends the director the notice of appeal, district court

docket entries, any trial court opinion, appellate docket entries, any

appeal information form filed by the appellant, and any response form

filed by the appellee. The appeal information form calls for identification of the issues raised on appeal. Both forms include a section in

which the parties indicate interest (or lack of interest) in settlement.

Local Rule 33 directs the appellant to file the appeal information form

with the notice of appeal in the district court; however, the form is not

jurisdictional in nature and failure to file it does not result in any penalty. The appellee may file a response form.

Judicial selection

Judicial panels occasionally refer cases to the program during or immediately after oral argument.
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

72

Scheduling the Conferences

Scheduling process

The director attempts to contact attorneys and schedule settlement

conferences at the early stages of an appeal, before filing of the transcript and briefs. Generally the conference occurs before the due date

for the appellant’s brief, which is normally six weeks after docketing of

the appeal.

Conference sites

The vast majority of the joint conferences are conducted by telephone,

but the director conducts conferences in person with parties and their

attorneys whenever possible. In-person conferences are usually conducted in the court’s St. Louis headquarters for St. Louis cases. This is

also true for cases from other parts of the circuit that involve large dollar amounts if the parties are willing to bear the travel expense. The director occasionally travels to conferences outside St. Louis, depending

on the time and cost of travel and the number or complexity of cases

scheduled for conference in a given location. The director usually

holds these in-person conferences in St. Paul or Little Rock, or in cities

within a half-day drive.

Preconference submissions

For a better understanding of a case, the director usually requests additional materials, such as post-trial briefs, before the conference. Normally, however, he does not receive copies of appellate briefs. No separate submission statements are requested before the conference, although the parties are free to furnish them.

Mediation Sessions

Nature of sessions

The primary goal of the mediation conference is settlement. Typically,

in cases that are not settled, issue reduction occurs as a natural byproduct of settlement discussions.

At the joint conference, the director explains the court’s rule on

confidentiality of settlement discussions. He usually initiates discussion

of the case by requesting that the appellant list the issues on appeal and
EIGHTH CIRCUIT: SETTLEMENT PROGRAM

73

assess the likelihood of success on each issue. Sometimes, prior settlement discussions form the basis for starting the conference discussions.

After the introductory joint session, the director functions in a mediation role, usually meeting separately with the parties to assist them

in the development of offers and to convey offers and counteroffers to

each side. He considers these separate meetings (also called caucuses)

essential to the mediation process. He says he does not render judgment, try to pressure the parties, or impose a settlement. He does,

however, question unrealistic assessments when they prevent meaningful bargaining, and he tries to suggest meaningful offers and alternatives whenever possible. The director tries to develop options that the

parties may not have considered. He sometimes asks the parties whether they should consider any matter or dispute other than the subject of

the appeal. Examples of other matters are settlement of related litigation and forming altered or new business relationships prospectively.

Party participation

Attorneys and their clients are strongly encouraged to attend settlement

conferences. In most situations the client, or client representative with

discretionary settlement authority, is present for in-person conferences

and for joint telephone conferences. In telephone conferences, attorneys are asked to have their clients present with them or patched into

the call placed to the attorneys by the director. The director conducts

few joint settlement conferences without the involvement of decisionmaking clients for both parties.

Number and length of sessions

In-person conferences last from several hours to all day, depending on

the progress being made. On average, an in-person, joint conference

lasts five to six hours, and a telephone conference lasts one to three

hours. The director says he tries to plan only one conference for the

parties to maximize settlement efforts and to avoid the delay and loss

of momentum associated with numerous conferences. Numerous conferences tend to be less effective because parties are engaged in efforts

to implement the briefing schedule and are less focused on settlement.

The preset briefing schedule is typically not postponed prior to the

conference, and the appellant’s first brief date acts as a deadline for negotiations. However, if settlement appears within reach after a confer-
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

74

ence, the director occasionally continues settlement efforts and makes

follow-up telephone calls as necessary to obtain settlement or exhaust

settlement possibilities. Extensions of the briefing schedule are officially discouraged, but a party may obtain an extension through application to the clerk of the court.

Fees

The program does not charge parties or attorneys for the costs of the

conferences.

Post-conference procedures

When a settlement is achieved, the director informs the Clerk’s Office

and asks the attorneys to execute a dismissal stipulation to close the

case, but the director does not usually get involved in drafting settlement agreements. The Clerk’s Office sends the attorneys a letter setting

a three-week deadline for submission of the stipulation of dismissal.

This deadline can be extended if necessary. If the case does not settle,

the preset briefing schedule controls.

Other Rules, Policies, or Practices

Effect on appellate proceedings

No aspect of the appeals process is stayed automatically while a case is

in the settlement program. The Clerk’s Office handles briefing schedules, requests for extensions, and all other case-management functions

for all cases, including cases referred to the Settlement Program. The

director reports that this separation insulates the Settlement Program

from any aspect of the decisional process or enforcement mechanisms

of the court. If a scheduled settlement conference is near a briefing

date and the parties request a briefing extension to accommodate a

conference, the director refers them to the clerk of court.

Confidentiality

Under court rule, settlement-related material and settlement negotiations are maintained in confidence by Settlement Program staff. The

director has no contact with the judges of the court or the court’s legal

staff about matters discussed in the conferences.
EIGHTH CIRCUIT: SETTLEMENT PROGRAM

75

Recusal

The director recuses himself from cases in which he believes he would

have a conflict of interest. Before he proceeds as a mediator, he notifies

the parties of any prior personal or professional relationship with any

party and obtains the parties’ consent to function as a mediator.

Reports and evaluation

The director keeps internal records on the program for use in preparing statistical reports, including a description of the main issues on appeal. The reports are sent monthly to the judges of the court.

For More Information

Contact John H. Martin, Director, Settlement Program, U.S. Court of

Appeals for the Eighth Circuit, Thomas F. Eagleton U.S. Courthouse,

111 South Tenth Street, Room 24.342, St. Louis, MO 63102, telephone: 314-244-2499.

Websites:

www.ca8.uscourts.gov/newcoa/publs/publs.htm (Click on “Local Rules

of the Eighth Circuit” and go to “Rule 33A”)

www.ca8.uscourts.gov/newrules/coa/IOP-complete.pdf (Go to subsection I.C.2, “Prehearing Conference Program”)
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Ninth Circuit:

Settlement Program

The Settlement Program in the U.S. Court of Appeals for the Ninth Circuit was established in 1992.

15 The program is an independent unit in

the court of appeals. The program staff consists of five circuit mediators and three support positions in San Francisco, and one circuit mediator and one support position in Seattle. The chief circuit mediator

manages the program and reports to the chief circuit judge.

Circuit mediators review all eligible cases and select those with settlement potential. Cases are then randomly assigned to the circuit mediators, who conduct the mediation conferences. In exceptional circumstances, the circuit mediator may refer a case to a circuit, district,

or magistrate judge or to another circuit mediator for mediation. Court

personnel report that the circuit mediators are experienced litigation

attorneys who have extensive training and expertise in negotiation, mediation, and settlement.

The primary purpose of the Settlement Program is to facilitate settlement of civil cases docketed in the court. Once the program schedules a mediation conference, participation by attorneys is mandatory.

When appropriate, the circuit mediator directs party-clients to attend

the conference as well.

If settlement is not reached in a mediation conference, the circuit

mediator addresses any jurisdictional issues and works with the attorneys to develop the most efficient and expeditious plan for disposition

of the case. This plan may include limiting the issues, limiting briefing,

defining the record on appeal, or staying the appeal pending some

contingency, such as disposition of a related case.

The Settlement Program Office selects for mediation conference

approximately 40% of the cases that are eligible for the program. Eligible case types are described in the next section. If the circuit mediators

do not have sufficient information to determine whether they should

schedule a case for mediation, they first conduct an initial assessment

 15. The Settlement Program’s precursor began in 1984 and evolved into the current

program, which is governed by Federal Rule of Appellate Procedure 33 and Ninth Circuit

Rules 3-4, 15-2, and 33-1. In the 1984 version of the program, the emphasis was not on

settlement but on improving presentation of issues before the court. The program

evolved into one with an emphasis on settlement, and in 1992, the court modified the

program and officially recognized it as a settlement program.
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

78

conference. This occurs in about 80% of the cases the circuit mediators review. The primary purpose of an assessment conference is to determine whether a mediation conference should be scheduled. The

primary purpose of a mediation conference is to explore settlement of

the dispute.

Selecting Cases for Conferences

Eligible case types

Most non–prisoner civil cases are eligible for the program. Exceptions

are pro se cases, petitions for writs (other than habeas corpus), and

original proceedings. Among the cases in the program are bankruptcy

appeals, petitions for review of Board of Immigration Appeals decisions under 8 U.S.C. § 1105(a), and petitions for review of National

Labor Relations Board decisions under 29 U.S.C. § 160(e).

Selection process

The Clerk’s Office dockets each program-eligible case, and soon thereafter sends the Civil Appeals Docketing Statement to the Settlement

Program Office. The circuit mediators review these statements to help

them determine which program-eligible cases appear to be good candidates for the Settlement Program and to facilitate case management.

Following this review, and in some cases after making telephone calls

to the counsel of record, the mediators select cases for conference

scheduling.

Case selection is based on a number of factors, including the parties’ interest in participating in settlement negotiations. Also, the circuit

mediators consider whether the case appears likely to settle and

whether the settlement program could otherwise benefit the parties. If

the circuit mediator finds a jurisdictional defect or jurisdictional dispute that he or she cannot resolve with the attorneys by agreement, the

circuit mediator refers the case to the civil motions unit in the Clerk’s

Office for processing.

The presumption is that a case is not selected for the program unless the Settlement Program Office enters an order scheduling an assessment or mediation conference. The office sends the attorneys that

order, which acts as notice of the assessment or mediation conference.

In about 5% of cases in the program, attorneys request a settlement

conference by either letter or telephone call to the chief circuit media-
NINTH CIRCUIT: SETTLEMENT PROGRAM

79

tor. The Settlement Program Office keeps the request confidential if the

attorney so specifies. Circuit mediators may ask for specific information from attorneys before determining whether to schedule a case for

an assessment or mediation conference. Only in extraordinary circumstances, and with permission of the chief circuit mediator, will a circuit

mediator participate in negotiations involving pro se litigants.

The circuit mediator may determine that further participation in

the program would not be beneficial and may remove a case from the

program. There is a presumption that a case is not in the Settlement

Program if the program office has not sent the attorneys an order

scheduling a conference within fifty-six days of the docketing of the

appeal or petition.

Documents reviewed

The Settlement Program Office receives a copy of the Civil Appeals

Docketing Statement (CADS) filed for each program-eligible case. In

all civil cases eligible for the program, the appellant must submit a

CADS to the district court upon the filing of the notice of appeal or to

the court of appeals in cases in which court rules do not require a notice of appeal. The CADS provides information on jurisdiction, the nature of the action, the result at the trial level, and issues on appeal. The

CADS also asks the appellant to identify any case in which this matter

has been before the Ninth Circuit Court of Appeals previously and any

other legal proceeding that may have a bearing on the instant case on

appeal. The appellant attaches copies of judgments, orders, opinions,

and findings of fact and conclusions of law that will be relevant to the

major issues on appeal. Within seven days of service of the CADS papers, the appellee may file a response with the court of appeals.

Judicial selection

Occasionally, a judicial panel refers a case to the program. This can

occur at any time during a case, but usually occurs after briefing and

argument.

Scheduling the Conferences

Scheduling process

If a case is selected for either an assessment conference (to determine

whether a mediation conference should be held) or a mediation con-
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

80

ference, the Settlement Program Office sends the attorneys an order,

which is entered in the case, that sets the date and time of the conference, provides some basic information about the program, identifies

who should participate, states whether the conference will be in person or by telephone, and advises attorneys about how to prepare.

The court looks with disfavor on requests to reschedule a conference date, unless a date conflicts with a previously scheduled court

appearance or significant event.

Conferences typically occur in the prebriefing stage of an appeal.

Conference sites

Nearly all assessment conferences, and approximately 70% of the mediation conferences, are conducted by telephone. About 30% of the

mediation conferences are conducted in person. Generally, the circuit

mediator will not schedule an in-person conference unless there has

been groundwork for settlement. Most in-person conferences are held

at the court offices in San Francisco or Seattle; however, after consideration of the particular circumstances in a case, the circuit mediator

may conduct a conference elsewhere in the circuit. Each circuit mediator spends two to five days per month traveling.

Mediation submissions

Before most in-person mediation conferences and some telephone mediation conferences, the circuit mediator may ask the parties to submit

mediation statements. The circuit mediator determines the contents of

the statements and whether they will be exchanged with the other parties. In some cases, the circuit mediator also may want to review relevant authority before the initial conference.

Mediation Sessions

Nature of sessions

Assessment conference. The primary purpose of an assessment conference is to determine whether a mediation conference should be

scheduled. Usually, all attorneys intending to file briefs in the case are

required to attend the assessment conference, typically by telephone,

and to discuss the litigation history of the case. Before the assessment

conference, attorneys must discuss settlement with their clients.
NINTH CIRCUIT: SETTLEMENT PROGRAM

81

Mediation conference. The primary purpose of a mediation conference is to explore settlement of the dispute. The circuit mediator considers each case’s unique circumstances and personalities in determining an appropriate settlement procedure. Program rules require that

attorneys attend mediation conferences with appropriate authority to

make and respond to settlement proposals and to settle. The circuit

mediator may conduct follow-up in-person or telephone conferences,

in either separate or joint sessions. In exceptional circumstances, the

circuit mediator may refer a case to a judge or another circuit mediator

for mediation.

Party participation

Before a conference, attorneys must discuss settlement with their clients. If more than one attorney is representing a client, the attorney

with the most direct relationship with the client must attend the conference. Cocounsel and other attorneys in the lead counsel’s firm may

attend the conference if their presence would be beneficial.

Although clients generally do not participate in assessment conferences, they usually attend and participate in mediation conferences;

circuit mediators sometimes require their attendance in mediation

conferences. Conferences may also include representatives of third

parties upon whom settlement depends (such as insurance carriers), as

requested by the attorneys or the circuit mediator.

For in-person mediation conferences, each party-client must have

present an individual who is fully informed and vested with full settlement authority. For telephone mediation conferences, if the person

representing a party-client does not have authority to make and respond to settlement proposals, someone with authority must be readily

available.

Number and length of sessions

The assessment conference typically lasts about thirty minutes. For the

initial mediation conference, the average length is four to eight hours if

in-person and one to two hours if by telephone. To pursue opportunities for negotiated settlement fully in cases with good settlement prospects, the circuit mediator conducts extensive follow-up activities, such

as additional telephone conferences, including conversations (cau-
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82

cuses) with each side separately, and possibly in-person conferences.

These activities may continue for days or weeks.

Fees

The program does not charge parties or attorneys for the costs of the

conferences.

Post-conference procedures

If the parties reach a settlement, the circuit mediator occasionally helps

them draft a preliminary settlement agreement; the parties prepare the

final settlement agreement. For settled cases, the parties send a request

(or stipulation) for dismissal to the circuit mediator; if the circuit mediator approves the dismissal, he or she sends an order to the Clerk’s

Office for entry in the case. The Settlement Program Office monitors

cases in the program to ensure that parties submit the dismissal papers

they have agreed to.

If the parties do not reach a settlement, the circuit mediator and

the other parties determine whether they should continue in the program and how to do so. At the last conference, the circuit mediator

usually works with the attorneys to establish a briefing schedule for the

case and issues an order, filed in the case file, releasing the case from

the program. After a case is released, attorneys direct all subsequent

procedural issues and all inquiries and filings to the Clerk’s Office.

In the context of a settlement or mediation, parties who have otherwise settled the case may stipulate to have one or more issues in their

appeal referred to an appellate commissioner for a binding determination. If the parties so stipulate, the appellate commissioner may handle

the matter with abbreviated and accelerated briefing and a guaranteed

opportunity for in-person or telephonic oral argument before the commissioner. The appellate commissioner will issue a determination and,

if requested, a written statement of reasons. The appellate commissioner’s determination will be final and nonreviewable for the stipulating parties; however, it has no precedential effect. Cases would ordinarily be referred to the appellate commissioner through the court’s

mediation program.
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Other Rules, Policies, or Practices

Effect on appellate proceedings

For a case selected for the program, the conference process does not

automatically stay any events in the case. For example, the briefing

schedule (time-schedule order) the Clerk’s Office established when it

docketed the appeal remains in effect, unless the circuit mediator adjusts it to facilitate settlement or the Clerk’s Office adjusts it pursuant to

court rules.

Procedural motions. The court requires that program participants

consult with the circuit mediator before filing any procedural motion.

The circuit mediator is authorized to rule on certain procedural matters while cases are in the program, including vacating or resetting the

appeal schedule. Usually, the circuit mediator resolves procedural

matters over the telephone and attorneys need not file a procedural

motion. For example, if the briefing schedule would require substantial work on the opening brief before the scheduled conference date,

an attorney may ask the circuit mediator by telephone, before the conference, to vacate the briefing schedule. In addition, the appellant may

make a telephone request to the circuit mediator to suspend preparation of the record if it appears that there is a reasonable possibility of

settlement and preparation of the record would be expensive.

If during a conference the circuit mediator is unable to resolve a

procedural issue with attorneys by consensus, the circuit mediator may

direct the attorneys to file a motion with the clerk. Either the circuit

mediator or the clerk will decide the motion.

Case-management conferences. The purpose of a case-management

conference is to manage the appeal effectively and develop a briefing

plan for complex cases. A case-management conference occurs only in

exceptional circumstances, such as in complex cases involving numerous separately represented litigants or extensive proceedings below.

For a case in the Settlement Program, the circuit mediator may

conduct a case-management conference either as part of an assessment

or mediation conference or as a separate telephone conference. If the

circuit mediator selects a case for a case-management conference, the

Settlement Program Office notifies the attorneys by order of the date

and time of the conference.

If a case is not in the Settlement Program and the court directs, either sua sponte or on request of a party, that the parties participate in a
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

84

case-management conference, the Clerk’s Office notifies the attorneys

by order of the date and time of the conference. A civil motions attorney from the Clerk’s Office conducts the conference by telephone.

Confidentiality

To encourage open and frank settlement discussions, the court exercises great care to ensure confidentiality in the settlement process. The

content of settlement discussions is confidential and is not disclosed to

the judges who might decide the case or to any other person. Attorneys

are prohibited from disclosing any such content in briefs or arguments.

The program functions independently from the judicial decisionmaking arm of the court. Documents and correspondence related to

settlement are kept in files that are not accessible to any court personnel outside the Settlement Program. Court personnel report that the

files are never made part of the main case file.

If the circuit mediator confers separately (caucuses) with participants, those discussions are also confidential to the extent the participants request confidentiality. Requests by attorneys to include a case in

the program also are kept confidential at the attorney’s request.

A judge who conducts a settlement conference in the role of a mediator pursuant to the rules of the Settlement Program does not participate in any judicial decision on any aspect of the case, except that

the judge may vote on whether to take the case en banc.

Sanctions

Failure to participate in a conference scheduled under the program

may result in sanctions, including dismissal of the case. See Kajioka v.

Commissioner of Internal Revenue, 883 F.2d 57, 58 (9th Cir. 1989)

(dismissing appeal for failure to prosecute after counsel repeatedly

failed to appear at scheduled conferences). The court may take other

action it deems appropriate, including imposition of disciplinary and

monetary sanctions pursuant to local rule.

Reports and evaluation

The Settlement Program Office reports periodically on the number of

cases in which conferences are held and the number of cases settled in

the program. These reports are sent to the executive committee of the

court and to the judges of the court. For a description and commen-
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85

tary on the rules and operation of the program, see Christopher A.

Goelz & Meredith J. Watts, Rutter Group Practice Guide: Federal

Ninth Circuit Civil Appellate Practice (2004).

For More Information

Contact David E. Lombardi, Chief Circuit Mediator, U.S. Court of Appeals for the Ninth Circuit, 95 Seventh St., P.O. Box 193939, San

Francisco, CA 94119-3939, telephone: 415-556-9900.

Website: www.ca9.uscourts.gov/ca9/Documents.nsf (See Ninth Circuit

Rules 3-4, 15-2, and 33-1 and the related Circuit Advisory Committee

Note)
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Tenth Circuit:

Circuit Mediation Program

The U.S. Court of Appeals for the Tenth Circuit’s Circuit Mediation Office consists of three circuit mediators and one conference administrator. Organizationally, the office is a separate unit of the court. The

chief circuit mediator reports to the chief judge. Court personnel report that the program’s circuit mediators are experienced attorneys

with mediation skills.

The Circuit Mediation Office, which began operations in 1991, attempts to schedule a mandatory settlement conference (mediation)

with a circuit mediator for most civil cases in which all parties are represented by counsel.

The primary purpose of the mediation is to explore the possibilities

of settlement. A second purpose is to identify and resolve, by agreement of the parties, any matters that may interfere with the smooth

handling or disposition of the case. The mediation program is based

on four assumptions:

1. Lawyers are frequently reticent about initiating settlement negotiations.

2. The appellate process, unlike trial proceedings, presents few

opportunities for the parties to meet to discuss settlement.

3. A mediator can help parties accomplish what they cannot accomplish alone.

4. A mediation office, operating with confidentiality apart from

the court’s decisional process, can offer flexibility otherwise

unavailable in a formal court setting.

The Circuit Mediation Office scheduled one or more mediation conferences in 477 new cases in 2002, 435 new cases in 2003, and 438

new cases in 2004. In each of these years, a few cases scheduled for

mediation conference settled before the initial conference; mediation

occurred in all the other cases scheduled for mediation conference.

Federal Rule of Appellate Procedure 33 and Tenth Circuit Rule 33 govern the mediation program.
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

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Selecting Cases for Conferences

Eligible case types

Most civil cases are eligible for selection into the mediation program.

Exceptions are pro se cases, habeas corpus cases, and cases with unresolved jurisdictional problems. Therefore, eligible cases reflect the variety of the court’s civil docket. Among the many types of cases in the

mediation program are bankruptcy appeals, tax appeals, and agency

cases.

The conference administrator schedules as many program-eligible

cases for a mediation conference as the Circuit Mediation Office staffing will allow. If there are more new cases than the office can handle,

the office randomly selects cases from the pool of all newly docketed

eligible cases. The office uses random selection because it finds it difficult to predict from case documents alone which cases are more likely

to settle.

If the Circuit Mediation Office does not schedule a case for a conference, attorneys for any party may call the office and request a conference at any time. The office almost always grants such requests.

Documents reviewed

For all civil cases docketed in the court, the Clerk’s Office sends docketing statements to the Circuit Mediation Office. (The appellant files a

docketing statement within ten days after the docketing of a case on

appeal, or fourteen days in agency cases.) The docketing statement includes a brief procedural history and factual background of the case,

the issues to be raised on appeal, a copy of the decision or order appealed from, and a copy of the district court docket sheet.

Judicial selection

Judicial panels occasionally refer cases to the Circuit Mediation Office

before or after oral argument.

Scheduling the Conferences

Scheduling process

The Circuit Mediation Office schedules the mediation conference, and

sends conference notices to the lead attorneys, ordinarily within a

week of receiving the docketing statement from the Clerk’s Office. The
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conference notice informs the attorneys of the time and date of the

conference and whether it will be in person or by telephone. An attorney with an unavoidable scheduling conflict may ask that the conference be rescheduled.

The Circuit Mediation Office usually holds conferences about two

weeks after notices are sent.

Mediation sites

About 95% of the mediation conferences are conducted by telephone,

but the circuit mediator occasionally requires an in-person conference,

sometimes outside Denver, which is the court’s headquarters.

Mediation submissions

The Circuit Mediation Office does not require written mediation statements from the parties, as some other mediation programs do.

Mediation Sessions

Nature of sessions

A circuit mediator conducts each mediation conference, discussing the

possibility of settlement and any other matter relating to the management and disposition of the appeal.

During the mediation conferences, the circuit mediator usually leads

a discussion of the legal merits of the case in order to understand the

key issues on appeal and to evaluate the risks of continuing with the

case. The Circuit Mediation Office expects the attorneys to be fully prepared to discuss these matters. The circuit mediators report frequently

having candid, private discussions with attorneys to determine the

party’s reasons for pursuing the case, learn the parties’ underlying interests, explore common ground, and examine bases for settlement. If

further negotiations beyond the initial conference are warranted, the

circuit mediator may conduct follow-up conversations or additional

conferences.

The circuit mediator also discusses procedural matters in order to

streamline the appeal process and avoid unnecessary paperwork. For

example, the parties may resolve transcript difficulties, agree to modify

briefing schedules, or agree to consolidate appeals.

Before the conference, the circuit mediator reviews the order or

opinion from the trial court and in some cases other materials; the cir-
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90

cuit mediator also may try to anticipate settlement options. During the

conference, the circuit mediator ensures fairness in the negotiating

process, acts as a catalyst to bring the parties together, acts as a buffer

when parties or attorneys clash, helps parties objectively assess the

strengths and weaknesses of the case, and may propose settlement alternatives.

Party participation

Once the Circuit Mediation Office schedules a case for a mediation

conference, participation in the process is mandatory. The court requires lead counsel to participate, and their clients may attend. Before

the conference, lead counsel must obtain authority to settle the appeal.

Number and length of sessions

The initial conference usually lasts one to two hours. Generally, there

is only one joint conference, and follow-up discussions after this initial

joint conference constitute much of the workload of the Circuit Mediation Office.

Fees

The program does not charge parties or attorneys for the costs of the

conferences.

Post-conference procedures

At the conference, any action that affects the interest of any party requires the agreement of all parties. If a settlement is reached, the circuit

mediator gives the parties a date for filing a settlement stipulation.

If the parties reach agreement on matters that would facilitate the

handling of the appeal (such as elimination of duplicative briefs or

motions or stipulations regarding the record), the circuit mediator enters an appropriate order reflecting such agreement.

Other Rules, Policies, or Practices

Effect on appellate proceedings

The scheduling of a conference does not automatically stay any aspect

of the appellate process. The conference procedure runs parallel to the

regular appeal process and normally does not interfere with it. In cases
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91

in which briefing has started before the initial conference is scheduled,

however, the Circuit Mediation Office will extend briefing until after

the conference to preserve a more flexible atmosphere for settlement.

After the initial conference, the office may extend briefing further if the

circuit mediator thinks that doing so will further negotiations.

Confidentiality

Court rules forbid disclosure of statements made during a conference

and in related discussions to anyone outside the mediation process.

Attorneys may not refer to or quote any such statements in briefs or at

oral argument. See Clark v. Stapleton Corp., 957 F.2d 745 (10th Cir.

1992). The Circuit Mediation Office keeps all records it produces

within the office and out of any court file. If a party requests a conference, the office keeps that request confidential.

Sanctions

The court may impose sanctions for the failure of an attorney or a

party to comply with the provisions of the court’s mediation program

rules or orders. See Pueblo of San Ildefonso v. Ridlon, 90 F.3d 423

(10th Cir. 1996).

Reports and evaluation

The office reports its workload statistics to the judges of the court every

month.

For More Information

Contact David W. Aemmer, Chief Circuit Mediator, U.S. Court of Appeals for the Tenth Circuit, Byron White U.S. Courthouse, 1823 Stout

St., Denver, CO 80257, telephone: 303-844-6017.

Websites:

www.ck10.uscourts.gov/cmo/index.php

www.ck10.uscourts.gov/clerk/rulesandforms.php (Go to 10th Circuit

Rule 33)
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Eleventh Circuit:

Appellate Mediation Program

The U.S. Court of Appeals for the Eleventh Circuit launched its appellate mediation program in 1992. In 2001, the court changed the name

of its Circuit Mediation Office to the Kinnard Mediation Center (Mediation Center).

16 The court’s mediation program provides opportunities for parties to resolve their disputes confidentially with the help of a

neutral third party.

The circuit mediators are court employees. As of May 2005, the

Mediation Center consisted of six circuit mediators (three in Atlanta,

including the chief circuit mediator; one in Tampa; and two in Miami),

an administrative manager, and three administrative assistants (one in

each location). The chief circuit mediator manages the mediation program and reports to the circuit executive on administrative matters and

to the court on policy matters. For operational purposes, the Mediation Center is a separate unit of the court.

Court personnel report that the circuit mediators have extensive

trial and appellate experience, as well as significant training and experience in mediation.

The Mediation Center mediated a total of 843 appeals in 2002,

893 appeals in 2003, and 925 appeals in 2004. The Mediation Center

conducts mediation of civil appeals under Federal Rule of Appellate

Procedure 33 and Eleventh Circuit Rule 33-1.

The court of appeals amended its local rules effective October

2004 to provide that, upon agreement of all parties, the parties at their

expense may employ a private mediator to mediate an appeal that the

Mediation Center selected for mediation, as described below.

Private Mediators

Since October 1, 2004, the court of appeals has allowed for the use of

private mediators upon agreement of all parties and at their expense.

 16. The naming of the office honors the late Stephen O. Kinnard, the mediation

program’s first chief circuit mediator, and his “extraordinary service in making mediation

a fundamental component in the Eleventh Circuit’s appeals process.” See Mediation and

Guidelines for Effective Mediation Representation 1 (Aug. 2005), http://www.ca11.us

courts.gov/offices/mediation.php (click on “Mediation and Guidelines for Effective Mediation Representation” (last visited July 18, 2006)).
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

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Eleventh Circuit Rule 33-1(g) provides the procedures and requirements that govern the use of a private mediator for this purpose. For

example, the private mediator

• must have been certified or registered as a mediator by the

state of Alabama, Florida, or Georgia for the preceding five

years;

• must have been admitted to practice law in the state of Alabama, Florida, or Georgia for the preceding fifteen years and

be currently in good standing; and

• must be currently admitted to the bar of the U.S. Court of Appeals for the Eleventh Circuit.

Those employed as private mediators under this rule must follow

the Eleventh Circuit’s Private Mediator Procedures for Mediation of

Appeals issued by the Kinnard Mediation Center. These procedures are

available on the Internet at www.ca11.uscourts.gov/offices/mediation.

php. The provisions of the rule are in effect until September 30, 2006,

and after that date if an order of the court reauthorizes the provisions.

If the parties opt to use a private mediator, the Mediation Center

does not stop monitoring the appeal’s progress; rather, the circuit mediator first assigned to the appeal continues to monitor its progress as

the appeal proceeds through private mediation until either the appeal

is resolved or the Mediation Center determines that further mediation

would not be productive. At the time this sourcebook was written,

parties in program-eligible appeals were infrequently opting to use a

private mediator.

Selecting Appeals for Mediation

Eligible case types

All fully counseled civil appeals except prisoner, habeas corpus, and

immigration appeals are eligible for mediation conducted by the

court’s circuit mediators. The Mediation Center mediates all eligible

appeals except those in categories with low probabilities of settlement.

However, some cases in those categories may be selected for mediation, depending on the workload of the Mediation Center.

Attorneys for any party may request mediation in eligible appeals

by calling the Mediation Center.
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Documents reviewed

Appellants and petitioners file with the clerk of the court of appeals a

Civil Appeal Statement, accompanied by portions of the record, setting

forth the information necessary for an understanding of the nature of

the appeal. The clerk forwards the completed Civil Appeal Statement

with required attachments, the notice of appeal, and the district court

docket sheet to the Mediation Center.

Judicial selection

Either before or after oral argument, a panel of judges may direct attorneys and parties in the appeal to participate in mediation conducted

by the court’s circuit mediators.

Removal from the program

Participation in the mediation program is mandatory. If, however, the

parties consult and all agree that mediation would not be productive,

they may contact the circuit mediator handling the appeal to discuss

changing the scheduled mediation conference to a half-hour assessment conference. The decision on whether to hold a half-hour assessment conference rests with the circuit mediator.

Scheduling Mediation

Scheduling process

Upon receipt of the Civil Appeal Statements from the Clerk’s Office,

the appeals are sorted by district and rotationally assigned to the Mediation Center’s circuit mediators. The Mediation Center sends written

notice of the initial mediation to lead attorneys, to be received at least

two weeks before the mediation date. The Mediation Center schedules

most mediation sessions soon after court of appeals docketing and before briefing.

Conference sites

Initial mediation sessions may be held by telephone, and the circuit

mediators initiate the calls. If the attorneys are located in the Atlanta,

Tampa, or Miami areas, the initial mediation may be held in person at

the mediation center in those cities.
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Mediation submissions

The court’s Local Rule 33 directs attorneys in appeals selected for mediation to send a Confidential Mediation Statement in letter format to

the circuit mediator to be received at least two days prior to the initial

mediation conference. The Mediation Center’s guidelines for mediation

tell attorneys to do the following in the statement:

• recite the circumstances that gave rise to the litigation, including facts underlying any procedural issues in the appeal;

• describe any matters pending in the lower court or in related

litigation;

• describe any recent developments that may affect the resolution of the appeal;

• describe any other efforts to settle the appeal, including prior

offers or demands;

• summarize the parties’ legal positions and provide a candid

statement of their respective strengths and weaknesses;

• identify individuals who they believe should be directly involved in the settlement discussions;

• describe any sensitive issues that may not be apparent from the

court records but will influence the settlement negotiations;

• describe the nature of the relationship between the attorneys

and between the parties;

• present the party’s priority of interests;

• suggest creative solutions or approaches for the circuit mediator to take in an attempt at settlement (“problem” to be settled,

sequence of issues);

• give the necessary terms in any settlement;

• explain limitations on their authority to make commitments on

behalf of their client;

• list any concerns about confidentiality; and

• describe any additional information their client or the other

party needs to settle the appeal and indicate whether the information is needed before the mediation.
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Mediation Sessions

Nature of mediation

The circuit mediator begins the mediation session by describing the

mediation process, discussing confidentiality, and inquiring whether

any procedural questions or problems can be resolved by agreement.

The parties and the circuit mediator then discuss, either jointly or

separately,

• the legal issues and the appellate court’s decision-making process regarding these issues (e.g., preservation of error, waiver,

standards of review);

• any efforts to settle the appeal;

• the parties’ underlying interests, preferences, motivations, and

assumptions, and new information or other changes that may

have occurred since the decision below;

• future events based on the various possible outcomes of the

appeal;

• how resolution of the appeal could affect the underlying problem;

• cost–benefit and time considerations; and

• procedural alternatives possibly applicable to the appeal (e.g.,

vacatur, remand).

The discussion is not limited to these topics and will vary considerably

depending on the circumstances of each appeal. The circuit mediator

also attempts to generate offers and counteroffers and may conduct

several follow-up mediation sessions, by telephone or in person, until

the appeal settles or the circuit mediator reaches the conclusion that it

will not settle.

When the parties agree to employ a private mediator, the court requires the private mediator to follow the Eleventh Circuit’s Private Mediator Procedures for Mediation of Appeals issued by the Mediation

Center. These procedures are available on the Internet at www.ca11.

uscourts.gov/offices/mediation.php.

Party participation

The Mediation Center attempts to identify lead attorneys for all parties

and instructs them to promptly advise the center if the purposes of the
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98

mediation would be accomplished more effectively with different or

additional attorneys or participants.

Local Rule 33 directs attorneys to have their client present at the

mediation or available by telephone. The rule authorizes the circuit

mediator to waive client participation, in which case attorneys must

have the authority to respond to settlement proposals. The circuit mediator may require that the clients be present during in-person mediation or participate in telephone mediation. Government agencies or

other parties that have to make settlement decisions collectively may

provide a representative authorized to negotiate on behalf of that agency or party and to make settlement recommendations to it.

Although the mediation sessions are relatively informal, they are

official court proceedings. The court’s local rule imposes sanctions

against any party who fails to appear or otherwise fully participate.

Number and length of sessions

The Mediation Center tells attorneys to allow two hours for initial telephone mediation sessions; from four hours to all day for initial inperson mediation sessions; and from thirty minutes to one hour for

follow-up mediation sessions. Full pursuit of all opportunities for negotiated settlement might require extensive mediator follow-up activity,

such as additional telephone calls, in-person sessions, or caucuses with

each side separately.

Fees

The program does not charge parties or attorneys for the costs of the

mediation or for the circuit mediator’s time in monitoring appeals in

which the parties agree to employ a private mediator. The parties who

employ a private mediator are responsible for the private mediator’s

fees and costs.

Post-conference procedures

Because settlement is voluntary, circuit mediators take no actions affecting the interests of any party without the consent of all parties. If

the parties reach a settlement, the attorneys prepare the settlement

agreement, which is binding on all parties.

Once all parties agree on the terms of settlement, the circuit mediator sends a letter to the parties explaining dismissal procedures, which
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require the parties to file with the clerk a joint (or agreed) motion to

dismiss. Parties who need a post-settlement extension of the briefing

schedule must follow the procedures described in the next subsection.

If the appeal does not settle, the circuit mediator declares an impasse. Negotiations can resume at any time until the appeal is terminated.

Other Rules, Policies, or Practices

Effect on appellate proceedings

Mediation does not automatically stay appellate proceedings, including

the briefing schedule. The circuit mediator may grant an extension of

time for an attorney who has a brief due if the extension will facilitate

settlement, the deadline for submitting the brief has not passed, and

the attorney has not previously filed a motion for an extension of time.

The Mediation Center tells the attorney in this situation to call the circuit mediator, and if the circuit mediator grants the extension, to fax

the circuit mediator a confirmation letter, copied to all counsel, that

states the current and extended submission date.

The circuit mediator then forwards the attorney’s letter to the clerk,

and the clerk updates the docket to reflect the new due date. If the circuit mediator cannot grant an extension, the attorney may request an

extension from the clerk or file a motion with the court. Such a motion

must not contain any reference to the Mediation Center or circuit mediation, as required by the confidentiality rules governing the program.

Confidentiality

The circuit mediator’s notes and the attorney’s Confidential Mediation

Statements do not become part of the court’s file. The Mediation Center does not reveal any request by counsel for mediation without the

requesting party’s permission. Ex parte communications are also confidential except to the extent disclosure is authorized.

Local Rule 33’s confidentiality provision applies to all mediated

appeals, including appeals that judges refer to mediation. The rule directs all parties and participants in the mediation process to keep confidential all statements and comments made during the mediation and

in any subsequent related communications, including not disclosing

them (or making any reference to the Mediation Center or circuit mediation) in papers or arguments “to any court or adjudicative body that
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

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might address the appeal’s merits.” The rule provides limited exceptions:

• release that is necessary to enforce noncompliance sanctions;

• release to those entitled to know about the mediation by reason of a position or relationship with a party; or

• release with the written consent of each mediation participant.

Sanctions

Local Rule 33 authorizes the clerk, after notice, to dismiss the appeal

of a party who does not file a timely Civil Appeal Statement. The rule

also authorizes the court, in the case of a party or attorney who fails to

comply with the rule or the court’s notice of mediation, to (a) assess

reasonable expenses caused by the failure, including attorneys’ fees or

all or a portion of the appellate costs; (b) dismiss the appeal; or

(c) take such other action it believes is warranted. As stated above, the

court’s Local Rule 33 provides for imposing sanctions against any party

who fails to appear at or otherwise fully participate in mediation.

Reports and evaluation

The Mediation Center submits to the judges of the court monthly internal reports on the number of appeals mediated, pending, terminated, and settled. These reports do not include case names or docket

numbers. Except for appeals specifically referred to the Mediation Center by a panel of judges, there is no reporting to the court concerning

the status of its mediations.

For More Information

Contact Lowell L. Garrett, Chief Circuit Mediator, U.S. Court of Appeals for the Eleventh Circuit, 56 Forsyth Street, N.W., Atlanta, GA

30303, telephone: 404-335-6260.

Website: www.ca11.uscourts.gov/offices/mediation.php
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District of Columbia Circuit:

Appellate Mediation Program

The U.S. Court of Appeals for the District of Columbia Circuit implemented its Appellate Mediation Program in May 1987. The program is

an established part of the appellate process in the court. The Legal Division of the Clerk’s Office of the court of appeals, working in concert

with the director of dispute resolution in the Office of the Circuit Executive, refers cases to the program. The circuit executive serves as the

program administrator and is responsible for program evaluation and

liaison between the mediators and court personnel.

The program is managed by the director of dispute resolution in

the Office of the Circuit Executive. The director helps select and train

mediators, assigns mediators to cases referred to mediation, monitors

the mediators’ work, may mediate or co-mediate cases, and serves as a

resource for mediators and the public when questions arise about the

program or about particular cases. The director and deputy director

also manage a separate dispute resolution program for the district

court.

The program’s mediators are volunteer attorneys who are selected

by the court and trained by professional mediator trainers. They include experienced litigators, senior members of the bar, and law professors. Mediators are encouraged to attend occasional training events

sponsored by the court. The extensive use of volunteer mediators distinguishes this program from other regional federal appellate mediation programs. The director of dispute resolution assigns each case in

the program to a mediator based on a mediator’s experience, expertise

in particular subject areas, and other relevant factors.

Although the volunteer mediators are not paid for their services,

the court offers to reimburse them for minor out-of-pocket expenses

and provides them with administrative support and limited secretarial

services if needed. The director of dispute resolution occasionally comediates a case with one of the volunteer mediators and sometimes

mediates cases without a co-mediator.

The primary role of the mediators is to help parties reach a settlement or, at a minimum, resolve some issues in their case. If settlement

is not possible, the mediators will help the parties clarify or eliminate

issues to expedite the appellate process. Other objectives of the pro-
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gram are reducing the expense of protracted appeals and encouraging

the development of creative resolution options.

Another feature of this program, and this court, is that many of the

mediated cases are on review from a decision of a federal agency or

involve the United States, the District of Columbia, or other government entities. Court personnel report that settlement rates for government cases have consistently kept pace with those for private cases.

The mediation process is governed by the court’s per curiam Order

Establishing the Appellate Mediation Program, effective Nov. 29, 1988,

as amended.

Selecting Cases for Mediation

Eligible case types

The program handles a broad range of cases. Eligible cases include civil appeals from the district court, petitions for review of agency action,

and original actions. Regulatory matters are the single largest category

of referred cases.

In determining whether to accept a case, Clerk’s Office attorneys

and the director of dispute resolution consider

• the underlying dispute and its relation to the issues on appeal;

• incentives to settle or limit issues on appeal;

• the issues’ susceptibility to mediation and their possibility of

resolution;

• the number of related pending cases; and

• the number of parties (especially if there are many parties from

distant jurisdictions).

Cases in which one or more of the parties require a judicial resolution

of the issues on appeal are often inappropriate for mediation.

Attorneys in the Clerk’s Office screen most civil and agency cases

to determine whether they are appropriate for mediation. The Clerk’s

Office refers cases it believes might be appropriate for mediation to the

director of dispute resolution for a second level of review. Cases are

accepted into the program no earlier than forty-five days after the appeal is docketed and usually before the briefing schedule is issued.

Before selecting a case for mediation, the director of dispute resolution usually solicits the views of the lead attorneys about the suitabil-
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ity of referring the case to a mediator. The attorneys’ views on this matter are not dispositive, however.

Parties may request mediation by submitting a request form to the

clerk. The Appellate Mediation Program encourages them to do so and

gives such requests special consideration, but does not automatically

grant the requests. Such requests are confidential and are not disclosed

to the judges of the court or to opposing counsel.

The order that governs the program provides that “[u]ncounseled

cases, while not categorically excluded [from the program], are rarely

referred to mediation.” The director of dispute resolution reports that

the program has accepted pro se cases for mediation in rare instances

in the past. In such cases, the court of appeals appoints an attorney to

represent the pro se party for mediation purposes only.

Documents reviewed

When selecting cases for mediation, the Clerk’s Office and the director

of dispute resolution have the following documents available for review:

• the docketing statement;

• the judgment or order on appeal;

• any opinion issued;

• the appellant’s statement of issues on appeal;

• the certificate of counsel as to parties, rulings, and related

cases; and

• all relevant motion papers and court orders.

Scheduling the Conferences

Scheduling process

A letter from the circuit executive to each party’s lead attorney initiates

the mediation process. The letter notifies the attorneys that the case has

been selected for mediation, describes the program, identifies the assigned mediator, and transmits a copy of the court’s per curiam order

describing the procedures to be followed.

The first mediation session is held within forty-five days of the

case’s selection for the program.
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Conference sites

The mediators conduct initial mediation sessions at the E. Barrett Prettyman U.S. Courthouse of the court of appeals or, if mutually agreeable, in the mediator’s office. On some occasions, the mediator decides

to hold the initial session by telephone, if for example, traveling to

Washington, D.C., would be a hardship for a participant. Subsequent

conferences are conducted by telephone or in person.

Mediation submissions (Position papers)

The order establishing the program directs the attorneys for each party,

within fifteen days of selection of the case for mediation, to submit to

the mediator a “position paper” no longer than ten pages that states the

party’s views on the key facts and legal issues in the case and includes a

statement of motions filed in the appeal and their status. The order also

directs the attorneys to inform the mediator of all motions filed or decided while mediation is under way and to provide them to the mediator on request. The order makes clear that attorneys must not file these

mediation statements and other documents with the Clerk’s Office and

need not serve them on opposing counsel, unless the mediator so directs.

Mediation Sessions

Nature of sessions

Mediation usually begins at a joint meeting attended by the mediator,

attorneys, and, whenever possible, the parties themselves. The mediator explains how the mediation is to be conducted and then asks each

party to explain its views on the matter in dispute. The appellant typically will speak first. The mediator usually refrains from asking questions, or allowing participants to ask questions of one another, until all

parties have had an opportunity to speak. Then the mediator often

meets individually (caucuses) with each side to explore more fully the

needs and interests underlying stated positions and to help parties explore settlement options. Additional meetings may be held to explore

settlement possibilities or to help the parties finalize an agreement. 
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Party participation

The court requires that attorneys for the parties attend all mediation

sessions. The court also strongly urges that all party-clients attend each

mediation session. Each party represented must have an attorney or

another person present with actual authority to enter into a settlement

agreement during the mediation session. The order establishing the

program authorizes mediators to communicate directly with a party to

request attendance as long as the mediator fully discloses such communication to that party’s attorney.

Someone with settlement authority need not attend mediation sessions in cases involving the United States or District of Columbia governments, as long as such a person can be reached by telephone during the sessions. When settlement authority rests with an assistant attorney general (or its equivalent) or an official at a higher rank, with

members of an independent agency, or with District of Columbia officials above the rank of corporation counsel, the order waives the requirement to be reachable during the mediation session unless the

mediator specifically requires such availability in writing after reviewing the mediation papers.

Number and length of sessions

Initial mediation sessions usually last several hours. The mediator may

schedule additional meetings or place follow-up telephone calls to attorneys. Follow-up discussions may continue for days or weeks.

The complexity of cases involving the federal government or other

government units as parties, including cases on review from a federal

agency, frequently requires significant amounts of mediator time. The

mediator often must conduct several mediation sessions and multiple

follow-up phone calls.

Fees

Neither the program nor the mediators charge parties or attorneys for

the costs of the mediation, including the mediator’s services.

Post-mediation procedures

No party is bound by anything said or done at a mediation session unless a settlement is reached.
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If mediation results in a settlement, attorneys for the parties file a

stipulation of dismissal or other appropriate stipulation within thirty

days after settlement, unless the attorneys move for a short extension.

If mediation does not resolve a case, the case remains on the docket and proceeds as if mediation had never occurred. Although the mediator notifies the Office of the Circuit Executive of the result, this information is never provided to the judges.

Other Rules, Policies, or Practices

Effect on appellate proceedings

All cases in mediation remain subject to normal scheduling for briefing

and oral argument. If the parties agree that a change in the schedule

would further the progress of the discussions, they may file a joint motion to defer or postpone briefing or oral argument, representing in the

motion that the mediator (not identified by name) concurs in the request. The court has delegated to the clerk of court the authority to decide such motions and normally grants them. Attorneys may not file

any other motions that refer to the fact that the case is in mediation.

Confidentiality

The order establishing the program states that the “content of mediation discussions and proceedings, including any statement made or

document prepared by any party, attorney, or other participant, is

privileged and shall not be disclosed to the Court or construed for any

purpose, in any proceeding in any forum, as an admission against interest.”

17 The order thus bars the parties from filing any motion or

other document with the court that would disclose information about

the content of the mediation or whether it has been concluded. Parties

and mediators may not tell the court about parties’ requests to submit

cases to mediation or file their pre-mediation position papers with the

court. The order also bars parties from using any information obtained

as a result of the mediation process as a basis for any motion other

than one about the briefing or argument schedule.

Attorneys in the Circuit Executive’s and Clerk’s Offices do not confer with judges in selecting cases for mediation. The mediators and the

 17. Order Establishing the Appellate Mediation Program, effective Nov. 29, 1988, as

amended.
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Circuit Executive’s Office maintain strict confidentiality about the content of each mediation, do not communicate with the court about what

happens during mediation sessions, and do not file in court files the

papers generated by the mediation process. However, they may, with

the litigants’ consent, identify for the public or the court individual

cases that have been resolved through mediation as examples of the

Appellate Mediation Program’s success.

Sanctions

The order establishing the program states that failure of attorneys to

attend sessions “may result in sanctions.”

Recusal

The Appellate Mediation Program requires mediators to recuse themselves from any cases in which they perceive a conflict of interest. The

director of dispute resolution asks the mediators to check for conflicts

when a case is assigned to them and encourages them to recuse themselves when they or their law firms have a current or prior professional

affiliation with any party; when they have a close relationship with one

or more of the attorneys in the case; or when there is any other reason

that might make their service as a mediator in a particular case inappropriate. The director of dispute resolution has the discretion to substitute a new mediator if any party objects to the mediator initially appointed by the director. The court has no written recusal rules for

situations in which the director of dispute resolution serves as a mediator or co-mediator in the program other than the Code of Conduct for

Judicial Employees.

Immunity

The Court of Appeals for the District of Columbia Circuit has held that

a volunteer case evaluator in the District of Columbia Superior Court

ADR program has absolute quasi-judicial immunity while performing

official duties. Wagshal v. Foster, 28 F.3d 1249 (D.C. Cir. 1994), cert.

denied, 115 S. Ct. 1314 (1995).

Reports and evaluation

The mediators complete an evaluation form for each case mediated,

whether or not the case is settled in mediation. In addition, each attor-
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108

ney participating in mediation is asked to complete an evaluation

form. These forms provide information about the issues in the case, the

amount of time spent and number of meetings held during the mediation, the type of assistance provided by the mediator, and the outcome

of the talks. From these forms, the Office of the Circuit Executive prepares periodic reports for internal court use about the program, including program settlement rates.

For More Information

Contact Nancy E. Stanley, Director of Dispute Resolution, U.S. Court

of Appeals for the District of Columbia Circuit, 333 Constitution Ave.,

N.W., Room 4826, Washington, DC 20001-2866, telephone: 202-

216-7350.

Website: www.cadc.uscourts.gov (Click on “Mediation Programs”)
109

Federal Circuit:

Appellate Mediation Program

The U.S. Court of Appeals for the Federal Circuit began the Appellate

Mediation Program in 2005. The court’s Circuit Mediation Office consists of the circuit mediation officer and support staff that the court

deems necessary. Organizationally, the office is in the court’s Office of

the Clerk and Circuit Executive. The circuit mediation officer administers the program under the Appellate Mediation Program Guidelines,

which are available from the Clerk’s Office and on the court’s website

at www.fedcir.gov/#mediation.

Court personnel report that the circuit mediation officer has extensive experience as an attorney and as one of two chief deputy clerks in

the Clerk’s Office of the Federal Circuit. The circuit mediation officer

also has had training in mediation. In addition, he has had on-the-job

experience and training with respect to the design and implementation

of a mediation program.

In 2005 and 2006, the court asked, and intends to ask periodically

in subsequent years, the Federal Circuit Bar Association to provide the

court with a list of distinguished attorneys and academicians with expertise in the substantive areas of the court’s jurisdiction, as well as attorneys with experience mediating. The candidates are encouraged, but

not required, to be members of the bar of the court. The court selected

a roster of mediators from the list, and the court intends to add to the

roster in subsequent years. The goal is to have a roster of mediators

who will have expertise in a cross section of the court’s jurisdiction.

The court accepts, on a rolling basis, applications for mediator positions on the roster.

Court personnel report that the private mediators on the court’s

roster are distinguished, experienced attorneys and academicians.

Most, if not all, of these mediators have expertise in one or more of the

subject matters that are within the jurisdiction of the court, as well as

experience mediating. The mediators the court selects for its roster

must not be in the active practice of law. Mediators are not paid for

their services but will be reimbursed by the court for minor out-ofpocket expenses, such as photocopying costs, telephone charges, facsimile charges, and transportation to the courthouse.
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The program provides a confidential, risk-free opportunity for parties to resolve their disputes with the help of an experienced neutral,

third-party mediator, selected from the court’s roster. The purpose of

the program is to help the parties achieve settlement. Although party

participation in the program is voluntary, the program was established

with the expectation that the parties’ attorneys will be receptive to exploring mediation.

The court will periodically assess the program, and it may be extended, modified, discontinued, or made permanent. A three-judge

committee appointed by the chief judge oversees and monitors the

program’s operations. The committee will suggest changes to the program’s procedures, as the committee deems necessary.

During the program, the committee and the circuit mediation officer will have ongoing discussions about the course of mediation efforts

with the view of revising the program as necessary and appropriate.

The court established its voluntary Appellate Mediation Program by a

per curiam order dated August 1, 2005, under Federal Rule of Appellate Procedure 33.

Selecting Cases for Mediation

Eligible case types

All cases in which the parties are represented by counsel are eligible

for the program, with the exception of pro se cases, mandamus petitions, ex parte appeals from the Patent and Trademark Office, antidumping and countervailing duty cases, International Trade Commission cases, Temporary Emergency Court of Appeals (TECA) legacy

cases, and petitions for review of the Secretary of Veterans Affairs’

rulemaking.

According to procedures in effect at the time the program began in

2005, the circuit mediation officer determines those cases appropriate

for mediation. The circuit mediation officer then contacts attorneys in

those cases to determine whether the appeal and, if pertinent, the

cross-appeal present any jurisdictional defects. When speaking with

attorneys, the circuit mediation officer determines if the case is a good

candidate for mediation and if the parties agree to participate in the

mediation program. If there are no apparent jurisdictional defects and

if all the parties in a case agree that mediation would be useful, the circuit mediation officer usually refers the case and those parties to an
FEDERAL CIRCUIT: APPELLATE MEDIATION PROGRAM

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outside mediator. If at the outset it appears to the circuit mediation officer that mediation would not be fruitful, then court mediation efforts

will cease.

At any time during a case pending in the Federal Circuit, attorneys

for two or more parties may confidentially jointly request that a case

be included in the mediation program. A Confidential Joint Request to

Enter Mediation Program form is available from the Clerk’s Office and

on the court’s website. That request will not appear on the court’s

docket sheet and will be directed to the circuit mediation officer. If

there are no apparent jurisdictional defects and if all the parties in a

case file a joint request form, the circuit mediation officer usually refers the case and those parties to an outside mediator.

For each case mediated under the program, the circuit mediation

officer must select a mediator from the court’s roster with the following

exception. If the attorneys jointly propose a mediator not on the roster,

the circuit mediation officer has the option of appointing that mediator, provided the parties agree to pay any out-of-pocket expenses of

the mediator and the mediator agrees to serve pro bono.

Documents reviewed

The circuit mediation officer may review the notice of appeal, the trial

tribunal’s docket sheet, the decision of the trial tribunal, the court’s

docketing statement, and briefs to assist him in selecting cases for mediation.

The docketing statement is a two-page form to be completed by all

attorneys. The Clerk’s Office includes the form in the docketing packet

sent to the attorneys after a case is docketed. The attorneys must complete the form in duplicate and return it to the Clerk’s Office within

fourteen days of docketing. The docketing statement is not part of the

formal mediation process but will assist the circuit mediation officer

with the selection process. One copy is retained in the Clerk’s Office

case file, and the other copy is transmitted to the circuit mediation officer. The form asks for

• name(s) of the party or parties the submitting attorney represents;

• case information and relief awarded in the case below;

• any related cases pending before the Federal Circuit;
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• a brief statement of the issues to be raised on appeal in the case

at hand;

• whether the attorney believes that the case may be amenable to

mediation; and

• information relevant to the inclusion of the case in the court’s

Appellate Mediation Program.

Judicial selection

The court has no policy concerning judges or judicial panels referring

cases or matters to the circuit mediation officer for mediation.

Scheduling the Mediation Sessions

Scheduling process

Cases are selected for mediation as early as possible in the appellate

process and in no event after a case has been heard or submitted to a

panel of judges on the merits. The circuit mediation officer generally

selects cases for mediation before the first brief is filed. The program

may later expand to cases in which briefs have been filed.

The circuit mediation officer generally expects the mediator and the

parties to complete the mediation in 90 days. At the outside, mediation

must be completed within 150 days of the date of the case’s referral to

the program.

Mediation sites

Mediation sessions may be held in the courthouse if the mediator so

desires. The court intends that at least one mediation session will be an

in-person one with party principals and attorneys present. The court’s

mediation guidelines do not discuss the site of subsequent follow-up

sessions.

Mediation submissions

The court’s Appellate Mediation Program does not require written mediation statements from the parties, as some other mediation programs

do.
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Mediation Sessions

Nature of sessions

According to project guidelines, the mediator is not bound by a defined formula or approach to mediating a case. The mediator may conduct the mediation as he or she deems appropriate. Mediation will

cease at any time the mediator concludes that further efforts will not be

fruitful.

The purpose of mediation is settlement of the case. At least for

purposes of the program, the mediator will not be asked to narrow the

issues on appeal. The extent to which the parties agree to narrow the

issues will be reflected in their briefs.

Party participation

Participation in the program is voluntary. Once the Circuit Mediation

Office schedules a case for mediation, the court requires that attorneys

attend all sessions and that, at least one time during the process, the attorneys and the parties (or party representatives with actual settlement

authority) meet face to face.

If the U.S. government is one of the parties, the mediator may waive

this requirement by allowing a senior government attorney without

authority to settle to attend if someone with settlement authority can be

reached by telephone during the mediation session. If government settlement decisions must be made collectively, then a senior attorney

who is authorized to negotiate on behalf of the government and make

recommendations concerning settlement must be present. When settlement authority rests with an official at the rank of assistant attorney

general, its equivalent, or higher, the requirement that the official be

reachable during the mediation session may be waived.

Fees

The program does not charge parties or attorneys for the costs of the

mediation program, the mediation process, or the mediators. The private mediators serve without compensation. The court reimburses mediators for out-of-pocket expenses.
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Post-mediation procedures

At the conclusion of the mediation process in an individual case, the

mediator will notify the circuit mediation officer of the resolution of

the mediation.

If, following mediation, settlement is reached, the settlement agreement must be in writing and binding on all parties. In that event, the

appellant or the parties jointly must file, with the Clerk’s Office, a motion to dismiss the appeal voluntarily or other appropriate motion. If

the parties do not settle after mediation, the case proceeds as if mediation had not occurred.

Other Rules, Policies, or Practices

Effect on appellate proceedings

While cases in mediation remain subject to the normal scheduling for

briefs and oral argument by the Clerk’s Office, attorneys are free to file

a consent motion for an extension of time pursuant to Federal Circuit

Rule 27(h)(4) stating that “settlement” is the reason for the extension

(without a mention of mediation in the motion). If the mediator and

the parties believe that multiple mediation sessions are required, that

the filing of a brief or the scheduling of oral argument would interfere

with good-faith settlement efforts, and that additional extensions of

time are needed, the parties may file a joint motion for additional extensions. A motion for an extension, beyond the time granted under

Rule 27(h)(4), will be referred to the circuit mediation officer. The

court has given him the authority to grant motions for extensions, upon the showing of good cause, up to a date that is no more than 150

days after the case was referred to the mediator.

To maintain the confidentiality of the mediation process, a joint

motion for an extension of time for mediation purposes (beyond a

Rule 27(h)(4) motion) must be filed in a public version and a version

stamped “Direct to Circuit Mediation Officer.” The public version

should move for an extension of time on the basis of settlement discussions without reference to mediation. The Clerk’s Office places the

public version in the public file and enters the joint motion on the

docket sheet. The circuit mediation officer’s version must state that the

parties are in mediation, must state that the mediator agrees with the

need for an extension, and must include reasons for the extension. The
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circuit mediation officer will rule on the motion under the name of the

clerk. The Clerk’s Office will enter the ruling on the docket sheet in the

Clerk’s Office.

Confidentiality

The circuit mediation officer will not communicate with the judges

about the content or substance of any mediation proceedings. The circuit mediation officer may discuss the overall effectiveness of the Appellate Mediation Program with the court, however. In connection

with the court’s evaluation of the Appellate Mediation Program, the

circuit mediation officer may disclose statistical data and other summary information on the program if they are needed to assess the program. During the program, the committee will from time to time discuss the program with the circuit mediation officer with the aim of revising it as appropriate and necessary. Generally, communications

concerning statistical information are not prohibited. Papers generated

by the mediation process will not be included in the Clerk’s Office files

except as noted in connection with motions for extensions of time.

The content of mediation discussions and proceedings is confidential, as explained in the Appellate Mediation Program Guidelines. Mediators in the program are obligated to protect the confidentiality of all

mediation proceedings and are prohibited from complying with subpoenas or other requests for information about cases mediated under

the program. Mediators must not communicate with any court officials, except the circuit mediation officer, about what transpires in any

mediation session. Communications with the court about mediation

matters are limited to those between the mediator and the circuit mediation officer.

The court expects participating attorneys to refrain from commenting publicly about the fact that a case is or was in mediation or from

disclosing any information about the mediation to anyone who is not

or was not directly or indirectly a party to the proceedings. Nevertheless, if all attorneys and parties involved in a particular mediation agree

in writing to public disclosure of the mediation by the attorneys or the

parties, and the mediator consents, disclosure is not prohibited. Even

with such consent, attorneys should not include mention of mediation

in their briefs or at oral argument.
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Sanctions

Any party, attorney, or mediator who fails to materially comply with

any of the provisions of the Appellate Mediation Program Guidelines

may be subject to appropriate sanction by the court.

Recusal

Before final selection of a mediator, the circuit mediation officer will

inquire about conflicts of interest. The mediator must not represent either party for any purpose, must disclose any past relationships with

attorneys, attorneys’ firms, or the parties, and must disclose any potential conflicts. Mediators are required to decline from participating in

any cases in which there is a conflict of interest, in which they perceive

a conflict, or in which a reasonable person would perceive a conflict.

The Code of Conduct for Judicial Employees governs the circuit mediation officer’s conduct.

Reports and evaluation

During the program, the committee and the circuit mediation officer

will have ongoing discussions about the course of mediation efforts

with the aim of revising the program as necessary.

At the conclusion of the mediation process in each case under the

program, the mediator must notify the circuit mediation officer of the

resolution of the mediation. The circuit mediation officer will then

send a questionnaire about the effectiveness of the program to the attorneys and the mediator, inviting their candid, confidential responses.

The questionnaire responses must not be given to the judges of the

court or anyone else other than the senior staff attorney of the Federal

Circuit, who will summarize the responses. The senior staff attorney

will send the summary to the court for purposes of assessing the program; the summary must not reveal any details about or names of specific cases or persons.

For More Information

Contact the Circuit Mediation Officer, U.S. Court of Appeals for the

Federal Circuit, Howard T. Markey National Courts Building, Lafayette

Square, 717 Madison Place, N.W., Washington DC 20439, telephone:

202-312-5521.

Website: www.fedcir.gov/#mediation
117

Bibliography 

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MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

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the issues parties consider when evaluating the efficacy of mediating a decided case).

John H. Martin, Eighth Circuit Court of Appeals Pre-Argument Conference

Program, Mo. B.J. 251 (June 1984) (describing the Eighth Circuit

program).

Robert J. Niemic, On Appeal: Mediation Becoming More Appealing in Federal and State Courts, Disp. Resol. Mag., Summer 1999, at 13 (discussing the then current state of federal and state appellate ADR

and offering resources for learning more about existing programs).

Stephen S. Ostrach, Appellate ADR: The First Circuit’s New Civil Appeals

Management Program and Its Implications for the Massachusetts Appellate Courts, 36 Boston B.J. 17 (1992) (describing the First Circuit

program).

Anthony Partridge & Allan Lind, A Reevaluation of the Civil Appeals

Management Plan (Federal Judicial Center 1983) (providing a

comprehensive description and evaluation of the Second Circuit

CAMP program in effect in the late 1970s).

Robert W. Rack, Jr., Pre-Argument Conferences in the Sixth Circuit Court of

Appeals, 15 U. Tol. L. Rev. 921 (1984) (describing settlement negotiation at the appellate level and in the Sixth Circuit’s 1984 program).

Robert W. Rack, Jr., Thoughts of a Chief Circuit Mediator on Federal

Court-Annexed Mediation, 17 Ohio St. J. on Disp. Resol. 609 (2002)

(discussing issues and methods for ensuring quality in a staff mediation program).

C. Lewis Ross, ADR Practice in the Ninth Circuit, 4 Legal Malpractice

Rep. 15 (1995) (discussing the Ninth Circuit mediation program).

Nancy E. Stanley, A Case for Senior Mediation: D.C. Court Relies on Veteran Lawyers for ADR, 4 Experience 33 (1994) (discussing the use

of voluntary mediators in the District of Columbia Circuit).

Joseph A. Torregrossa, Appellate Mediation in the Third Circuit—Program

Operations: Nuts, Bolts, and Practice Tips, 47 Vill. L. Rev. 1059

(2002) (discussing the Third Circuit Appellate Mediation Program).
BIBLIOGRAPHY

121

Roselle L. Wissler & Robert W. Rack, Jr., Assessing Mediator Performance: The Usefulness of Participant Questionnaires, 2004 J. Disp. Resol.

227.

Federal Appellate Case Management

Thomas E. Baker, Intramural Reforms: How the U.S. Courts of Appeals

Have Helped Themselves, 22 Fla. St. U. L. Rev. 913 (1995).

Joe S. Cecil, Administration of Justice in a Large Appellate Court: The

Ninth Circuit Innovations Project 79–95 (Federal Judicial Center

1985) (describing several processes, including a prebriefing conference program in effect in the 1980s).

Roger A. Hanson, Carol R. Flango & Randall M. Hansen, The Work of

Appellate Court Legal Staff (2000) (discussing the work of appellate court legal staff in both federal and state appellate systems).

Carol Krafka, Joe S. Cecil & Patricia Lombard, Stalking the Increase in

the Rate of Federal Civil Appeals (Federal Judicial Center 1995)

(examining the reasons for the increasing federal appellate caseload).

Judith A. McKenna, Laural L. Hooper & Mary Clark, Case Management Procedures in the Federal Courts of Appeals (Federal Judicial

Center 2000).

Judith Resnik, Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century,

41 UCLA L. Rev. 1471 (1994).

Mediation in State Appellate Courts

Rhonda P. Chambers, The Alabama Appellate Mediation Program: How

and Why It Will Work, 65 Ala. Law. 180 (2004).

Roger A. Hanson & Richard Becker, Appellate Mediation in New Mexico:

An Evaluation, 4 J. App. Prac. & Process 167 (2002).

Sandra Schultz Newman & Scott E. Friedman, Appellate Mediation in

Pennsylvania: Looking Back at the History and Forward to the Future, 5

J. App. Prac. & Process 409 (2003).

Robert J. Niemic, On Appeal: Mediation Becoming More Appealing in Federal and State Courts, Disp. Resol. Mag., Summer 1999, at 13 (discussing the then current state of appellate ADR and offering resources for learning more about existing programs).
MEDIATION & CONFERENCE PROGRAMS IN THE COURTS OF APPEALS

122

Manuel A. Ramirez, Volunteer Attorney-Mediators Settle Appeals, 13 Cal.

Litig. 34 (2000).

Roselle L. Wissler, Court-Connected Mediation in General Civil Cases:

What We Know From Empirical Research, 17 Ohio St. J. on Disp. Resol. 641 (2002) (reporting original empirical research on courtconnected mediation in nine Ohio courts, examining program

characteristics and participant perceptions, and discussing future

design and research implications).

Nancy Neal Yeend, State Appellate ADR: National Survey and Use

Analysis with Implementation Guidelines (2d ed. 2002) (presenting updated survey data on the current use of state appellate ADR

programs and providing a framework for initiating new programs

and refining existing programs).
The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Judge Bernice B. Donald, U.S. District Court for the Western District of Tennessee

Judge Terence T. Evans, U.S. Court of Appeals for the Seventh Circuit

Magistrate Judge Karen Klein, U.S. District Court for the District of North Dakota

Judge James A. Parker, U.S. District Court for the District of New Mexico

Judge Stephen Raslavich, U.S. Bankruptcy Court for the Eastern District of Pennsylvania

Judge Sarah S. Vance, U.S. District Court for the Eastern District of Louisiana

Judge Karen J. Williams, U.S. Court of Appeals for the Fourth Circuit

James C. Duff, Director of the Administrative Office of the U.S. Courts

Director

Judge Barbara J. Rothstein

Deputy Director

John S. Cooke

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial

system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board, which also

includes the director of the Administrative Office of the U.S. Courts and seven judges

elected by the Judicial Conference.

The organization of the Center reflects its primary statutory mandates. The Education Division plans and produces education and training programs for judges and court

staff, including satellite broadcasts, video programs, publications, curriculum packages

for in-court training, and Web-based programs and resources. The Research Division examines and evaluates current and alternative federal court practices and policies. This

research assists Judicial Conference committees, who request most Center research, in

developing policy recommendations. The Center’s research also contributes substantially

to its educational programs. The two divisions work closely with two units of the Director’s Office—the Systems Innovations & Development Office and Communications Policy & Design Office—in using print, broadcast, and on-line media to deliver education

and training and to disseminate the results of Center research. The Federal Judicial History Office helps courts and others study and preserve federal judicial history. The International Judicial Relations Office provides information to judicial and legal officials from

foreign countries and assesses how to inform federal judicial personnel of developments

in international law and other court systems that may affect their work.