Mediation In The Ninth Circuit
The court established the Ninth Circuit Mediation Program pursuant to Federal Rule of Appellate Procedure 33 and Circuit Rule 33-1 to facilitate settlement of cases on appeal.
A. How Cases Are Included in the Program
Almost all civil cases in which the parties are represented by counsel are eligible for the Circuit Mediation Program. Cases come to the program in a variety of ways. The primary mode is initiated by the court and is called the Settlement Assessment Conference. On occasion, cases are referred by panels of judges or by the Appellate Commissioner. Additionally, counsel may request that an appeal be included in the program.
1. The Settlement Assessment Conference
The mediators look to a document called the Mediation Questionnaire to help determine whether a case might be an appropriate candidate for inclusion in the mediation program. The Mediation Questionnaire is filed in the Ninth Circuit within 7 days of the docketing of an appeal or a petition for review. See Ninth Circuit Rules 3-4 for a description of cases excluded from the program. A fillable version of the Mediation Questionnaire is available on this courtís website, www.ca9.uscourts.gov, under Forms.
Following the mediatorís review of the Mediation Questionnaire, in the majority of cases, the court will order counsel to participate in a telephone conference with a circuit mediator to exchange information about the case, discuss the options the mediation program offers, and look at whether the case might benefit from inclusion in the mediation program. The initial assessment conference typically lasts between 30 minutes and an hour and includes a discussion of the caseís litigation and settlement history. At the conclusion of the call, counsel and the mediator will decide whether further discussion would be fruitful. If it is agreed that further settlement discussions are not warranted, then the mediator will discuss with counsel any procedural or case management issues that may require attention, such as moving the briefing scheduling, consolidating cases, etc. As long as counsel are in agreement, the mediator will enter an order memorializing the agreements and not selecting the appeal for the Mediation Program. Additional follow up telephone calls may be necessary before a consensus is reached about whether a case will be included in the mediation program.
If there is a consensus to proceed to mediation, the appeal will be selected for inclusion in the Mediation Program. See Section C, The Mediation Process.
2. Panel Referrals
Approximately ten percent of the mediation programís cases come from referrals from panels of judges and from the Appellate Commissioner. Judges usually refer cases after oral argument, but before they submit the matter for decision. Sometimes the panel will inquire whether counsel believe such a referral would be beneficial; at other times the panel will simply refer the case. The Appellate Commissioner typically refers attorneys fees matters. Once a case has been referred, the assessment process generally follows the same process described above.
3. Requests From Counsel
Counsel are invited to contact the Chief Circuit Mediator if they would like to have an appeal included in the program. The request may be made confidentially, if so requested. Once a request has been received, the assessment follows the same process described above.