Mediation Rules

L.A.R. 33.0 APPELLATE MEDIATION PROGRAM

33.1 Appellate Mediation Program

Appeals in civil cases and petitions for review or for enforcement of administrative action
are referred to the Appellate Mediation Program to facilitate settlement or otherwise to assist in the
expeditious handling of the appeal or petition. A special master will serve as the Chief Circuit
Mediator and, in cooperation with the clerk, will manage the Appellate Mediation Program.
Mediations will be conducted by a senior judge of the court of appeals, a senior judge of a district
court, the Chief Circuit Mediator, or other person designated pursuant to Rule 48, FRAP Parties may
confidentially request mediation by telephone or by letter directed to the Chief Circuit Mediator. In
all cases, however, the special master will determine which cases are appropriate for mediation and
will assign the matter to a mediator.

33.2 Eligibility for Appellate Mediation Program

All civil appeals and petitions for review or for enforcement of agency action are eligible for
referral to the Appellate Mediation Program except: (1) original proceedings (such as petitions for
writ of mandamus); (2) appeals or petitions in social security, immigration or deportation, or black
lung cases; (3) prisoner petitions; (4) habeas corpus petitions or motions filed pursuant to 28 U.S.C.
Sec. 2255; (5) petitions for leave to file second or successive habeas petitions; and (6) pro se cases.
In all cases eligible for appellate mediation, the appellant or petitioner must file with the clerk,
within 10 days of the docketing of the appeal with service on all parties, a Civil Appeals Information
Statement and a Concise Summary of the Case, which is available on the court's website. Appellant
must attach to the Concise Summary of the Case copies of the order(s) being appealed and any
accompanying opinion or memorandum of the district court or agency. In the event the order(s)
being appealed or any accompanying opinion or memorandum adopt, affirm, or otherwise refer to
the report and recommendation of a magistrate judge or the decision of a bankruptcy judge, the
report and recommendation or decision must also be attached. In addition, any judge or panel of the
court may refer to the Chief Circuit Mediator any appeal, petition, motion or other procedural matter
for review and possible amicable resolution.

33.3 Initial Screening and Deferral of Briefing for Cases Selected for Mediation

The Clerk will provide the Chief Circuit Mediator with a copy of the judgment or order on
appeal, any opinion or memorandum issued by the district court or agency, appellant’s Civil Appeal
Information Statement and Concise Summary of the Case and any relevant motions. Following
review of these materials, the Chief Circuit Mediator may refer an appeal or petition to a senior
judge, himself or herself, or such other person designated pursuant to Rule 48, FRAP for mediation.
The Chief Circuit Mediator will advise the parties, the chosen mediator, and the clerk of the referral.

If a case is referred to mediation, a briefing schedule will be deferred during the pendency
of mediation unless the court or Chief Circuit Mediator determines otherwise. A referral to
mediation will not, however, defer or extend the time for ordering any necessary transcripts.

If a case is not accepted for mediation, or if accepted but is not resolved through mediation,
it will proceed in the appellate process as if mediation had not been considered or initiated.

33.4 Referral of Matters to Mediation by a Judge or Panel of the Court

At any time during the pendency of an appeal or petition, any judge or panel of the court may
refer the appeal or petition to a senior judge of the court of appeals, a senior judge of a district court,
the Chief Circuit Mediator, or other person designated pursuant to Rule 48, F.R.A.P. for mediation
or any other purpose consistent with this rule. In addition, any judge or panel of the court may refer
any appeal, petition, motion or other procedural matters for review and possible amicable resolution.
The procedures set forth in L.A.R. 33.5 are applicable to matters referred for mediation pursuant to
L.A.R. 33.4 unless otherwise directed by the Chief Circuit Mediator. Documents, including but not
limited to, those specified in L.A.R. 33.5(a) may be required.

33.5 Proceedings After Selection for the Program

(a) Submission of Position Papers and Documents. Within 15 days of the case’s selection
for mediation by the Chief Circuit Mediator, each counsel must prepare and submit to the mediator
a confidential position paper of no more than 10 pages, stating counsel’s views on the key facts and
legal issues in the case, as well as on key factors relating to settlement. The position paper will
include a statement of motions filed in the court of appeals and their status. Copies of position
papers submitted by the parties directly to the mediator should not be served upon opposing counsel.
Documents prepared for mediation sessions are not to be filed with the Clerk’s Office and are not
to be of record in the case.

(b) Mediation Sessions. The mediator will notify the parties of the time, date, and place of
the mediation session and whether it will be conducted in person or telephonically. Unless the
mediator directs otherwise, mediation sessions must be attended by the senior lawyer for each party
responsible for the appeal and by the person or persons with actual authority to negotiate a settlement
of the case. If settlement is not reached at the initial mediation session, but the mediator believes
further mediation sessions or discussions would be productive, the mediator may conduct additional
mediation sessions in person or telephonically.

(c) Confidentiality of Mediation Proceedings. The mediator will not disclose to anyone
statements made or information developed during the mediation process. The attorneys and other
persons attending the mediation are likewise prohibited from disclosing statements made or
information developed during the mediation process to anyone other than clients, principals or cocounsel,
and then, only upon receiving due assurances that the recipients will honor the
confidentiality of the information. Similarly, the parties are prohibited from using any information
obtained as a result of the mediation process as a basis for any motion or argument to any court. The
mediation proceedings are considered compromise negotiations under Rule 408 of the Federal Rules
of Evidence. Notwithstanding the foregoing, the bare fact that a settlement has been reached as a
result of mediation will not be considered confidential.

(d) Settlement. No party will be bound by statements or actions at a mediation session
unless a settlement is reached. If a settlement is reached, the agreement must be reduced to writing
and will be binding upon all parties to the agreement, and counsel must file a stipulation of
dismissal of the appeal pursuant to Rule 42(b), FRAP Such a stipulation must be filed within 30
days after settlement is reached unless an extension thereof is granted by the Chief Circuit Mediator.

33.6 Mediation in Pro Se Cases

In appropriate cases, the Chief Circuit Mediator may request counsel to represent pro se
litigants for purposes of mediation only. Counsel must agree to take the case on a pro bono basis,
except that if an applicable statute authorizes the award of attorneys’ fees, counsel may enter into
a written agreement with the client assigning to the attorney any amounts designated as attorneys’
fees. The case will be treated as any other case subject to mediation and all provisions of L.A.R. 33
will apply. If mediation is unsuccessful, counsel may discontinue his or her representation; however,
counsel may continue to represent the litigant through the rest of the appeal if counsel wishes and
the party agrees. The Chief Circuit Mediator may adopt and implement specific procedures in
furtherance of this rule.

Source: New rule in 2000.

Cross-references: None

Committee Comments: The rule was amended in 2011 to reflect a change in the title of the
circuit mediator and to accommodate electronic filing.