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Mediation - Frequently Asked Questions

  • Eligibility for Mediation and Selection of Cases for Mediation

    What cases are eligible for mediation?

    All civil appeals and petitions for review or enforcement of agency action are eligible for mediation. There are some exceptions--the major exception is pro se litigation. See L.A.R. 33.2.

  • Are all civil cases mediated?

    No. Only those cases which are eligible for mediation under L.A.R. 33.2 are sent by the Clerk's Office to the Chief Circuit Mediator of the Appellate Mediation Program for review and possible mediation.

  • Who will decide whether a case is selected for mediation? How are cases selected?

    The Chief Circuit Mediator selects cases for mediation. The Chief Circuit Mediator exercises judgment and discretion in the selection of cases based on the nature of the cases, the issues involved and prior experience. See L.A.R. 33.3.

  • May I request mediation? Can the request be made without the opposing side knowing of the request?

    Yes. Confidential requests for mediation may be made at any time during the pendency of an appeal. See L.A.R. 33.1. 

  • How will I know if my case is selected for mediation?

    Counsel will receive a Notice of Assignment for Mediation via CMECF.  The Notice will set forth the date and time for the mediation and the name of the mediator.  If a case is not selected for mediation, counsel will receive a briefing schedule from the Clerk's Office.

  • May I request mediation even after a case is not selected for mediation?

    Yes. Requests may be made by telephone or letter to the Chief Circuit Mediator.

  • If a case is selected for mediation, is mediation mandatory? May I "opt-out" of mediation?

    If a case is selected for mediation, mediation is mandatory; in exceptional cases (and for good cause shown), counsel may request that the case be removed from the Mediation Program.  All such requests should be made to the Chief Circuit Mediator.

  • May the court refer a case to mediation?

    Yes. Any time during the course of an appeal, the Court may refer a case to mediation. See L.A.R. 33.4

  • The Mediator

    Who will be the mediator, and how is the mediator selected?

    As a general rule, cases are mediated by the Chief Circuit Mediator, the Circuit Mediator or a senior judge of the Court of Appeals or a District Court within the Circuit. See L.A.R. 33.1.  The mediator is selected by the Chief Circuit Mediator.

  • How can I find out biographical information about the mediator?

    Biographical information for the Chief Circuit Mediator and the Circuit Mediator may be found on this website. With respect to senior judges, counsel may utilize publicly available sources for biographical information.

  • Impact of the Mediation Process on the Appellate Process

    Is the appellate process stayed when a case is selected for mediation?

    Only the Briefing process is stayed. Other aspects of the appellate process, such as motions, are not.  See L.A.R. 33.3.

  • When can I expect a briefing schedule?

    If a case is not selected for mediation, the Clerk's Office will issue a briefing schedule in normal course. If a case is selected for mediation, a briefing schedule will normally be issued only after an unsuccessful conclusion of the mediation.

  • The Mediation Process

    How will the mediation session be conducted? What takes place at the mediation?

    The mediation process may vary depending on the mediator. Generally, mediations commence with a general session with all parties, counsel and the mediator. At the general session, there will be a discussion of the case, the issues on appeal and other matters important to settlement. Then the mediator will meet separately with each party and their counsel in separate "caucuses."  In these separate sessions, the mediator will seek to foster negotiations between the parties and develop agreement.

  • Will the mediation be conducted in person or by telephone?

    Many mediations are conducted in person. However, the Chief Circuit Mediator may designate a mediation to occur by telephone. The Notice of Assignment for Mediation sent to counsel will specify whether the mediation will be conducted by phone or in person.

  • Who must be present at the mediation session?

    The senior lawyer for each party and the person(s) with actual authority to negotiate a settlement. See L.A.R. 33.5(b).

  • Will the mediation session be confidential?

    Yes. See L.A.R. 33.5(c).

  • What must I file before the mediation session?

    Before a mediation session, the parties must submit "position papers." The Notice of Assignment for Mediation will specify the date by which such statements must be submitted. There is no formal form for position papers. Position papers may be in the form of a letter or memorandum and must be submitted to the e-mail address See L.A.R. 33.5(a).

  • Is the mediation limited to the appeal itself? What if there are other disputes between the parties which are not involved in the appeal?

    Other disputes between the parties which are not the subject of the appeal may be included in the mediation session if it will aid in resolution of the dispute which is the subject of the appeal.

  • If a settlement is reached, will the terms of the settlement be confidential?

    No, unless the parties agree to keep the settlement terms confidential.

  • Post-Mediation Process

    What happens procedurally if a case settles as a result of the mediation?

    If a case settles during mediation, the mediator will confirm the settlement by letter and require the parties to file a Stipulation of Dismissal of the appeal within thirty days of the mediator's letter confirming the settlement. The filing of the Stipulation will terminate the appeal. If the parties desire to document the settlement over and above the mediator's letter confirming the same, the parties shall undertake to prepare such documentation. See L.A.R. 33.5(d).

  • What happens procedurally if a case does not settle after mediation?

    If a case does not settle after mediation, a briefing order will be issued, and the appeal will proceed in the normal course.