The Mediation Process

The Ninth Circuit Mediation Program was established to facilitate settlement of cases on appeal pursuant to Federal Rule of Appellate Procedure 33 and Circuit Rule 33-1.

Participation in the Program

Almost all civil cases in which the parties are represented by counsel are eligible for the Mediation Program. The Mediation Questionnaire is the primary vehicle by which cases are directed to the program. Appellants are required to file the Mediation Questionnaire within seven days of the docketing of an appeal or a petition for review.

One of the program’s eight Circuit Mediators will review the Mediation Questionnaire and, in most cases, will schedule a telephonic Settlement Assessment Conference with counsel (“the Assessment Conference”). This is generally the first step in the mediation process. The Assessment Conference is ordered by the court and participation is mandatory.

In certain cases, the Circuit Mediator may enter an order requesting more information from the parties before a decision is made about scheduling an Assessment Conference.

Counsel may ask that an appeal be considered for the Mediation Program; that request will be kept confidential if desired. Cases are also occasionally referred to mediation by merits panels, usually after oral argument. Additionally, attorneys’ fees motions filed in this court are regularly referred to mediation. Once a case has been referred, the assessment process generally follows the same path described above.

In most cases, the mediation process begins with a telephonic Assessment Conference with counsel and a Circuit Mediator. The Assessment Conference provides the participants an opportunity to exchange information about the case, discuss options for mediation, and to ultimately decide whether the parties want to engage in settlement work. The initial Assessment Conference typically lasts between 30 to 60 minutes and usually includes a discussion of the case’s litigation and settlement history.

At the conclusion of the call, counsel and the Circuit Mediator will decide whether further discussions would be fruitful.

In some cases, additional follow up telephone calls may be necessary before a consensus is reached about whether a case will be included in the Mediation Program.

A Tailored Approach

If the parties do agree to participate in the Mediation Program, the Circuit Mediator will work with them to develop an effective, cost sensitive process for exploring settlement. One of the highlights of the Ninth Circuit Mediation Program is the ability to design a process that best meets the needs of a particular case. 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, by telephone, or by video conference. The in-person sessions may be held at the court or at a location that is convenient for the parties. (See FAQ for more information about in-person mediations.) On occasion, the parties may prefer to negotiate directly while the mediator manages the case procedurally.

Working with the Circuit 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, the emphasis may be on rebuilding relationships or joint problem solving. Sometimes the mediator will facilitate direct discussions among the parties; at other times, the mediator may shuttle back and forth between private caucuses. In all cases, the mediator will endeavor to use the process that best serves the interests of the mediation participants.

Regardless of the process or the content of the discussions, the Circuit Mediator will facilitate negotiations among the parties to help them reach a mutually acceptable resolution. The mediator will ask questions, reframe problems, facilitate communications, 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 include speed, cost, certainty, control, creativity, and flexibility.

Resolution

If the parties settle the case, the Circuit Mediator will work with them to ensure that the proper documentation dismissing the appeal is filed with the court. If the parties are unable to resolve their appeal, the matter will be released from the Mediation Program.

Confidentiality

Maintaining the confidentiality of the parties’ negotiations is one of the cornerstones of the mediation process. See Circuit Rule 33-1. Ninth Circuit rules provide that any person “who participates in the Circuit Mediation Program must maintain the confidentiality of the settlement process.” Circuit Rule 33-1 (c) 4. This rule applies to all communications made during the mediation process, including telephone conferences and written communications. The Circuit Mediators do not disclose mediation communications to the judges.