Mediation in the Ninth Circuit

 

C. The Mediation Process

In each case selected for inclusion in the mediation program, the mediator will work with counsel to construct an effective, cost-sensitive settlement process. After the initial conference, the mediator may conduct follow-up conferences with counsel and the parties, in separate or joint sessions. These follow-up sessions may be held in-person or on the telephone. In-person mediations may be held at the court or, in appropriate cases, in other locations. See The In-Person Mediation, below for more information regarding in-person mediations.

Working with the mediator, the parties will determine what issues will be discussed in the mediation and how those discussions will proceed. In some cases, the focus of the mediation will be on the legal issues and possible outcomes of the appellate process. In other cases, it may be on rebuilding relationships or joint problem solving. Sometimes the mediator will facilitate direct discussions between the parties; at others he or she will act as an intermediary, shuttling back and forth between them. The mediator will try to resolve these various process issues in a manner that best serves the interests of the mediation participants.

Regardless of the content of the discussions, the mediator will facilitate negotiations among the parties to help them devise a mutually acceptable resolution. The mediator will ask questions, reframe problems, facilitate communication, assist the parties to understand each other and help identify creative solutions. The mediator will not take sides, render decisions, offer legal advice or reveal confidences.

Settlement occurs when the parties find a resolution that is preferable to continued litigation. Factors that frequently favor settlement over litigation include speed, cost, certainty, control, creativity and flexibility.