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, primarily through a Settlement Assessment Conference initiated by the court. On occasion, cases are referred by panels of judges or by the Appellate Commissioner. Counsel may also 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. Appellants are required to file the Mediation Questionnaire in the Ninth Circuit within 7 days of the docketing of an appeal or a petition for review. Appellees may file a Mediation Questionnaire, but are not required to do so. See Ninth Circuit Rules 3-4 and 15-2 for a description of cases excluded from the program. A fillable version of the Mediation Questionnaire is available on this court’s website, www.ca9.uscourts.gov, under Forms.

Following the mediator’s review of the Mediation Questionnaire, in the majority of cases, the court will order counsel to participate in a telephonic Settlement Assessment Conference with a circuit mediator to exchange information about the case, discuss 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 case’s litigation and settlement history. At the conclusion of the call, counsel and the mediator will decide whether further discussions would be fruitful. If counsel and the mediator agree that further settlement discussions are not warranted, the mediator can discuss with counsel any procedural or case management issues that may require attention, such as changing the briefing schedule, consolidating cases, or other procedural issues. As long as counsel are in agreement, the mediator will enter an order memorializing the procedural agreements and indicating that the case will not be included in 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 with mediation, the appeal will be selected for inclusion in the Mediation Program. See The Mediation Process, below.


2. Panel Referrals

Approximately ten percent of the mediation program’s 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; 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 may contact the Chief Circuit Mediator if they would like to have an appeal considered for the program. The request will be kept confidential, if counsel so requests. Once a request has been received, the assessment follows the same process described above.