After reviewing the Mediation Questionnaire, the mediators select cases for a telephonic Settlement Assessment Conference, the purpose of which is to engage counsel in a discussion about whether the case might benefit from settlement efforts. The conference includes a discussion of the case’s history, counsel’s views on whether mediation would be appropriate, and the mediator’s explanation of possible settlement procedures. At the conference (or sometimes at subsequent follow-up conferences), counsel and the mediator will decide whether to include the case in the mediation program.
Who is expected to participate in an assessment conference?
The court expects that all counsel intending to file briefs in the case participate in the conference. If more than one attorney is representing a party, then the attorney with the most direct relationship with the client should participate. Co-counsel and other attorneys in the principal counsel’s firm may attend if counsel believes their presence would be beneficial. Clients are not expected to participate in the initial assessment conference.
Is attendance at the assessment conference mandatory?
Yes. Attendance at the initial assessment conference is ordered by the court and is mandatory.
What if counsel is not available for the Assessment Conference as scheduled?
The mediation program will reschedule the initial Assessment Conference if counsel has a pre-existing obligation. Counsel should contact the mediation office by telephone [415-355-7900] or fax [415-355-8566] to request that the case be rescheduled. Ideally, counsel will have contacted opposing counsel first, and will include with the request a list of alternate dates and times available to all counsel.
Who initiates the call?
The mediator will initiate the call to all counsel listed in the court’s order setting up the conference. If the order contains incorrect information, it is important that counsel correct this information in advance of the initial call.
Do clients participate in the assessment and other telephone conferences?
Clients are discouraged from participating in the initial assessment conference call. Depending upon the case, clients may participate in subsequent phone conferences, and will always participate in in-person sessions, but the initial assessment conference is intended for counsel only.
How long will the conference last?
The initial assessment conference typically lasts from 30 to 60 minutes. Subsequent telephone conferences can vary in length, depending upon the nature and scope of the discussions.
Does a mediation statement need to be submitted?
No mediation statement is required for the initial assessment conference. If the case progresses further in the mediation process, the mediator may request that counsel submit mediation statements.
What does the mediator know about the appeal and what documents are available to the mediator before the assessment conference takes place?
Prior to holding the assessment conference, the mediator will have reviewed the Mediation Questionnaire filed by the appellant, the Ninth Circuit docket, and the lower court order from which the appeal stems. Sometimes the Mediation Questionnaire and the order appealed from contain a great deal of information; other times they contain very little. In all instances the mediator will give counsel the opportunity to explain their view of the case.
The mediators are all experienced attorneys who come from a variety of backgrounds. All are highly trained in mediation and negotiation. The mediators are employees of the court and have been mediating for the court from eight to twenty years.
Are mediators assigned a particular appeal according to its subject matter?
No. Appeals and petitions for review are assigned to all the mediators randomly, regardless of subject matter, with two small exceptions. All petitions for review related to the Bonneville Power Administration are assigned to Chris Goelz, and all petitions for review related to certain decisions of the Federal Energy Regulatory Commission are assigned to Lisa Evans.
Can the parties select a mediator from the program?
No, cases are assigned to the individual mediators in a random fashion. A mediator will, however, handle all related cases. In the event that related matters have been overlooked, requests to send them to the mediator with the earliest appeal are encouraged. Please note that Chris Goelz, who is based in our Seattle office, handles all cases originating in the state of Washington. The remaining cases are divided randomly among the other eight mediators, all of whom are located in the San Francisco office.
What if the parties wish to hire a private mediator?
If parties wish to hire a private mediator, the circuit mediator will manage the appeal (including adjustment of the briefing schedule) to accommodate the private mediation. The Ninth Circuit does not refer cases to private mediators, nor does it use a panel of private volunteer mediators.
Can the mediators move or vacate the briefing schedule?
Yes, the mediators can vacate or extend the briefing schedule, but will do so only if all counsel are in agreement. If counsel cannot agree, a motion must be filed.
Does involvement of an appeal in the mediation program slow down the disposition of the appeal?
No. Typically if a case is mediated, the mediator (with the agreement of counsel) will vacate the briefing schedule. If the case does not settle, the mediator will establish a new briefing schedule. Doing so does not delay disposition of the appeal, as the court schedules oral argument based on the date the Notice of Appeal is filed, not on the dates the briefs are filed. In most cases, oral argument is scheduled later than 12 months after the filing of a notice of appeal, which usually allows enough time to mediate without delaying disposition of the case.
If an appeal is in the program, will the mediation take place in person? If so, where will it occur?
Each case is unique. One of the mediator’s tasks is to make sure that the mediation process meets the needs of all participants, to the greatest extent possible. Thus, in one case the mediator will schedule multiple conferences over the telephone, while in another he or she will hold an in-person mediation. When an in-person mediation is scheduled, the mediator will make every effort to hold the session in a venue that is as convenient as possible for the greatest number of participants. Mediators will travel to locations throughout the Ninth Circuit when warranted.
Is there a cost to my client of participating in the mediation program?
No. The mediation program is a service of the court and is provided free of charge.
Does the mediation office take pro se cases, i.e., cases where at least one party is not represented by counsel?
No. The Ninth Circuit Rules exempt pro se cases from participation in the program. See Circuit Rule 3-4(b)(1) and 15-2(b)(1). The court, with the assistance of its Rules Committee, has made a policy decision to exclude unrepresented parties from participation in the mediation program.
Can I request that my case be included in the mediation program?
Yes. In any counseled case, counsel may send a request to be included in the program to the Chief Circuit Mediator. Such requests will be held confidential if counsel so requests.
How does appellate mediation differ from mediation at the District Court level?
Mediation at the appellate level is not particularly different from mediation at the District Court level. In both instances mediators help parties to explore their interests, think creatively, and develop solutions. The difference is that on appeal, a judge, jury or administrative agency has rendered an appealable decision. Sometimes that decision resolves all of the substantive issues in the case, and sometimes it resolves only some of them (e.g., appeals from preliminary injunctions or decisions about qualified immunity). Either way, the decision, and what is likely to happen to it on appeal, become part of the risk analysis the mediator uses to help the parties negotiate. That said, some cases lend themselves to appellate mediation better than others. See "What Makes a Case a Good Candidate for Appellate Mediation?"
Now that the court is using electronic filing, how is the confidentiality of mediation materials maintained?
Any document electronically filed with the court’s clerk’s office is not confidential and will appear on the court’s electronic docket. The mediators can cause the clerk to remove mistakenly filed confidential documents after the fact, but counsel should exercise care in the first instance to avoid the filing of confidential documents with the court. All messages, correspondence and documents sent to the Mediation Program’s e-mail address or sent to the individual mediators' e-mail addresses are maintained separately from the court’s electronic filing and case management system and are confidential.
