Mediation conferences are scheduled routinely in most civil appeals. They are conducted by experienced attorneys trained as mediators and employed by the Court. Although significant attention may be given to procedural questions or problems raised in a case, the primary purpose of the conference is to provide participants a confidential opportunity for a candid discussion and evaluation of their case with an informed neutral party and to explore interests in and options for voluntary disposition of the appeal.
Cases are selected for mediation in several ways. Most are selected randomly by the Mediation Office from the pool of all fully counseled civil appeals, excluding prisoner and habeas corpus cases. Mediations may also be scheduled at the request of counsel for one or more of the parties, and such requests will be kept confidential unless counsel instructs otherwise. Finally, hearing panels of the Court occasionally refer cases for mediation either before or after oral argument.
Scheduling & Attendance
When a case has been selected for mediation, counsel will receive a Mediation Conference Notice three to four weeks in advance. Most conferences are scheduled prior to the date for the initial brief, allowing sufficient time for briefing if the case is not resolved. If warranted, the mediator may also grant short extensions of the briefing schedule.
Most initial mediation conferences are conducted by telephone. However, if all counsel live in the Cincinnati area, the initial conference is typically held in person.
For telephone mediation conferences, the Mediation Office initiates the calls to participants at the numbers provided in the Mediation Background Information Form (PDF). (See Below) The dependability and sound quality of traditional land-line telephones has proved to be superior to that of cell phones, so we encourage participants to use land lines for mediation conferences, whenever possible. In a change from our prior policy, however, we now permit the use of cell phones where the use of a land line is not possible or would be unduly inconvenient. In such situations, the use of cell phones is permitted, subject to the following conditions:
- The battery should be sufficiently charged to complete a two-hour call;
- The participant must be in a private location with minimal background noise;
- The participant's location must have an adequate cellular connection, to minimize the chances of the call being dropped; and
- The participant must remain in a fixed location. The use of a cell phone in mediation conferences while driving is strictly prohibited.
Where multiple attorneys are involved, the attorney with the most direct relationship with the client is required to participate in the mediation conference and should be listed as Lead Mediation Counsel on the Mediation Background Information Form (PDF). Contact information should be provided for each lawyer who will participate, including each person’s direct dial number, if available, or the best number at which each participant can be reached.
Settlement decisions are necessarily made in close consultation with clients, so their attendance/participation in mediation is strongly encouraged. If you believe this is the unusual case in which such participation would be counterproductive, please so advise the mediator before the conference. Even in those cases, however, you should make arrangements for your client to be available by telephone during the conference.
Mediation Background Information Form
When a case has been selected for mediation, Sixth Circuit Rule 33 requires all parties to submit a Mediation Background Information Form (PDF) by the date specified in the Mediation Conference Notice. The Form is to be submitted directly to the Mediation Office (it may be sent electronically, by fax, or by mail) and shall NOT be filed or otherwise disclosed to the Court. Except to the extent authorized by counsel, information in the Form will be held confidential and will not be shared with other parties or their counsel.
As noted below, the mediator will review the relevant documents from the district court, and counsel should keep in mind that the Mediation Background Information Form (PDF) is not a legal brief or argument. It provides an opportunity for counsel to share with the mediator information and insights that will be useful in acquainting the mediator with the dispute and the factors that might lead to settlement. The information requested on the Form is intended to help the mediator more effectively assist the parties in assessing prospects for settlement, and, if warranted, by steering negotiations toward solutions that will satisfy the parties' interests. Providing all of the requested information and submitting the Form in a timely manner is essential to maximizing the likelihood of success in mediation.
Most conferences begin with an inquiry about any procedural questions or issues to be addressed. The focus of discussion then usually moves fairly quickly to exploration of the issues on appeal. The purpose of this discussion is not to decide the case or reach conclusions, but to understand the issues and how they may be decided by the court if the case is not resolved through mediation. In many cases, a candid examination of the probabilities for various possible outcomes on appeal is helpful in evaluating the value of settlement.
The primary focus of most conferences is exploration of possible alternatives for resolution of all issues in dispute. The parties' concerns, needs, and interests are considered, and options for addressing them are pursued until settlement is reached or it becomes clear that settlement is not possible.
Initial conferences typically last two hours. The time depends on parties' interests, positions, and readiness to negotiate. In many cases, proposals that are generated require further review or development, so follow-up discussions may continue for days or longer as needed. If negotiations continue productively, the briefing schedule may be extended for a reasonable time while negotiations continue. Follow-up telephone or in-person conferences may be scheduled in order to fully pursue all opportunities for a negotiated settlement. The mediator may require client participation at subsequent conferences.
What Participants Can Expect
The Mediation Conference will be conducted by a Circuit Mediator. Generally, participants can expect the mediator to facilitate a thoughtful, respectful, and, when appropriate, detailed exploration of the merits of the case. The extent of his or her preparation will vary with the amount of information available at the time of the conference. The mediator will have read the information submitted by counsel in the Mediation Background Information Form (PDF), together with the district court opinion, where available. The mediator will inquire about each party's settlement interests if they are not immediately evident, often in private caucuses. Every effort will be made to generate and explore proposals, offers, and counter-offers until the parties reach agreement on settlement or until all agree that the case cannot be settled and understand why. While conferences are relatively informal in style, they are conducted with decorum appropriate to any official proceeding of the Court.
What the Court Expects
The mediator devotes considerable time and effort preparing for and participating in a mediation conference, and the attitudes and perceptions of the participants may change during the mediation. This time and effort can be wasted and opportunities for settlement lost if the lawyer participating in the conference is not the lawyer on whose judgment the client will rely when making decisions about the case, or when an important decision maker is not present. Any perceived tactical advantage of sending an attorney or client representative with limited knowledge or authority to the conference can be more than offset by the lost opportunity to influence or be influenced by the informed evaluation and settlement discussions in the mediation. Lead counsel are asked to come prepared to articulate their view of the merits of the case as well as their clients' concerns and interests.
When a case is selected for mediation, Sixth Circuit Rule 33 requires all parties to participate in the mediation, at least through their counsel. However, no one will be compelled to settle.
Confidentiality is deemed essential to the effectiveness of the mediation process and is treated seriously by the Mediation Office and the Court. Sixth Circuit Rule 33 provides that communications in mediation conferences or in connection with the mediation process are confidential. They may not be disclosed or otherwise used by any mediation participant, except as agreed in advance by all participants. All such confidentiality restrictions apply equally to the mediator.