The Mediation Questionnaire (“MQ”) is a fillable form that provides information relevant to the suitability of the appeal for mediation. Appellants are required to file an MQ within 7 days of docketing the appeal. See Ninth Circuit Rules 3-4 and 15-2. Once it has been submitted, all parties will receive an NDA that has a link that will enable parties to submit relevant confidential information directly to the Circuit Mediators. The primary purpose of the MQ is to inform the mediation office about the appeal and its potential for settlement; counsel need not worry about preserving issues on appeal in the MQ.
Are appellees/respondents required to file an MQ?
Appellees may file an MQ but are not required to do so. There is no filing deadline, but for it to be considered by the Circuit Mediator as part of the assessment process it should be filed soon after the appellants file their MQ.
Whom do I contact if I need help electronically filing the MQ or any other documents? Do I use the same user ID and password that I use in the district court?
No. The Ninth Circuit electronic filing system is completely different from that of the district court. New registration is required along with a new user ID and password. Any questions about passwords or user IDs should be directed to the CM/ECF help desk.
Can the MQ deadline be extended and, if so, by how many days?
You may contact the Mediation Office to ask for an extension; generally, a one to two week extension can be expected.
The Settlement Assessment Conference
What is a Settlement Assessment Conference?
After reviewing the Mediation Questionnaire and any other relevant information, the Circuit Mediators schedule most cases for a telephonic Settlement Assessment Conference (“Assessment Conference.”) The conference is intended to assess whether the case might benefit from settlement efforts and typically 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. During the conference (or sometimes during a subsequent follow-up conference), counsel and the mediator will decide whether to include the case in the Mediation Program.
Who is expected to participate in the Assessment Conference?
The court expects that counsel for each party that intends to file a brief in the appeal will participate in the conference. The attorney with the most direct relationship with the client is encouraged to participate. Co-counsel and other attorneys in the principal counsel’s firm may attend if their presence would be beneficial.
Is attendance at the Assessment Conference mandatory?
Yes. Attendance by counsel at the initial Assessment Conference is ordered by the court and is mandatory.
Do clients participate in the Assessment Conference and other telephone conferences?
While clients are an essential part of the mediation process, the initial Assessment Conference is intended for counsel only. Depending upon the case, clients may participate in subsequent phone conferences and will always participate in in-person sessions.
What if counsel is not available for the Assessment Conference as scheduled?
The Mediation Program will reschedule the initial Assessment Conference if counsel has an unavoidable conflict. To reschedule the call, please follow the instructions in the Assessment Conference order. Ideally, counsel will contact opposing counsel first and will provide a list of alternate dates and times available to all counsel.
Who initiates the Assessment Conference?
The call will be scheduled as a dial-in call; the instructions will be provided to counsel of record by email. If the order contains incorrect contact information, it is important that counsel correct this information immediately by contacting the person identified in the order. In addition, counsel should correct any information directly through CM/ECF.
How long will the Assessment 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.
Should a mediation statement be submitted in advance of the Assessment Conference?
A mediation statement is not required for the initial Assessment Conference. If the case progresses further in the mediation process, the Circuit Mediator may request that counsel submit mediation statements.
What does the Circuit Mediator know about the appeal prior to the Assessment Conference?
The Circuit Mediator will have reviewed the Mediation Questionnaire, the Ninth Circuit docket, the lower court order from which the appeal stems, and any information counsel may have submitted confidentially. Counsel will have the opportunity to provide additional information and to explain their view of the case.
The Ninth Circuit Mediators
Who are the Circuit Mediators?
The Circuit Mediators are all experienced attorneys who come from a variety of backgrounds and who are highly trained in mediation and negotiation. They are Ninth Circuit employees and have an average of twenty-five years of private law and mediation experience. For more information see The Ninth Circuit Mediators.
Are mediators assigned to appeals according to subject matter?
No. Appeals and petitions for review are assigned to the Circuit Mediators without regard to subject matter.
Can the parties select a specific Circuit Mediator from the program?
No, cases are assigned to individual Circuit Mediators without regard to party or counsel preference. The assigned Circuit Mediator will, however, handle all related cases. Therefore, it is important to identify any related cases in the MQ.
What if the parties wish to hire a private mediator?
If parties wish to hire a private mediator, the Circuit Mediator will continue to assist with case management issues such as adjusting 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 Circuit Mediators extend or vacate the briefing schedule?
Yes. The Circuit Mediators can extend the briefing schedule if all counsel are in agreement. If counsel do not agree, a motion must be filed.
General Questions About the Program
Does involvement in the Mediation Program slow down the appeal?
Not usually. When a mediation Assessment Conference is scheduled, the briefing schedule remains the same. If the parties want to engage in mediation, the parties will usually agree to extend the briefing schedule so as to avoid unnecessary briefing if the matter is resolved. Doing so does not automatically delay disposition of the appeal, as the court assigns cases to merits panels based on the date the Notice of Appeal is filed, not on the dates the briefs are filed. The Circuit Mediators work expeditiously to avoid delay in the processing of the appeal should the case not settle.
If an appeal is in the Mediation Program, will the mediation take place in person? If so, where will it occur?
Each case is unique. One of the Circuit 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 mediation process may entail multiple conferences over the telephone, while in another there may be an in-person mediation. Depending upon the circumstances, the mediator may conduct conferences via video conferencing. When an in-person mediation is scheduled, the mediator will make every effort to hold the session in a location that is as convenient as possible for the greatest number of participants. Mediators will travel to locations throughout the Ninth Circuit when warranted.
Am I required to submit a mediation statement?
The parties are typically requested to submit a mediation statement to the Circuit Mediator prior to a mediation in which the clients will participate, whether it be in-person, via telephone or via video conferencing. The order setting up the mediation will include instructions for preparation of that statement. The individual Circuit Mediators have their own specific requirements for the mediation statement. On rare occasions a Circuit Mediator may ask the parties to submit a mediation statement as part of the parties’ settlement discussions even though client participation may not be anticipated.
Is there a cost to my client of participating in the Mediation Program?
No. The Mediation Program is a valuable service that the court provides free of charge.
Does the Mediation Program take pro se cases, i.e. cases where at least one party is not represented by counsel?
Pro se cases are not routinely mediated. Exceptions can be made with the approval of all parties and the Chief Circuit Mediator.
Can I request that my case be included in the Mediation Program?
Yes. In any counseled case, counsel may request that the case be included in the Mediation Program; such communications will be held confidential if requested. The request should be sent to email@example.com.
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 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 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 parties’ risk analysis. Some cases lend themselves to appellate mediation better than others.
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 Circuit 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, mediation statements or other documents sent to the Mediation Program or the individual mediators are maintained separately from the court’s electronic filing and are confidential.
Do the judges know what is discussed in mediation?
All circuit mediation is confidential. The Circuit Mediators do not communicate with the judges about the process. There may be docket entries that reflect that mediation activity has occurred, but no substantive information appears in those entries.
What happens at the conclusion of the mediation?
If the case settles, the Circuit Mediator will work with the parties to ensure that the proper dismissal documents are filed with the court. If the case does not settle, the appeal will be released from the Mediation Program and the mediator will reset the briefing schedule, if necessary, and assist the parties with any procedural matters that might need attention.
May a case that has been released from mediation be returned to the Mediation Program?
If all parties agree, the parties may request that the appeal be returned to the Mediation Program.
My case has been assigned to an argument panel. May I request mediation?
If a case has been calendared for oral argument, the parties must file a motion requesting that the matter be referred to mediation. If the motion is granted, the matter will then be referred to the Mediation Program.
Are Social Security Cases Included in the Mediation Program?
Mediation Assessment Conferences are not routinely scheduled in Social Security appeals. Counsel are encouraged to contact the mediation office at firstname.lastname@example.org if they believe a social security appeal has remand potential or is otherwise amenable to resolution. Matters in which a claimant has been awarded benefits or attorneys’ fees after the district court’s decision may also be suitable for mediation, as well as cases in which the claimant is deceased.
Are Immigration Cases Included in the Mediation Program?
Although immigration cases are not routinely scheduled for mediation assessment conferences, counsel are encouraged to contact the Mediation Program if they believe an immigration case may be amenable to resolution. A mediation referral may be productive in a case with remand potential, or where petitioner may be eligible for relief collateral to the claim decided by the immigration court (e.g., an approved I-130 petition or a pending U-Visa application). Counsel may request a mediation referral by filing a motion or correspondence. In addition to requests from counsel, other units of the court may refer an immigration case to mediation to explore settlement potential.