Pre-argument mediations are scheduled by the Court with counsel for all parties in many civil appeals.
They are conducted by experienced and specially trained Circuit Mediators. Although significant
attention may be given to procedural questions and problems raised by counsel in a case, the primary
purpose of the mediation is to offer participants a confidential, risk free opportunity to candidly
evaluate their case with an informed neutral and to explore possibilities for voluntary disposition of
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Cases are selected for pre-argument mediations in several ways.
Most are selected by the mediation program from the pool of all fully counseled civil appeals. Excepted
from the screening process are habeas corpus and some agency cases. Cases may be scheduled for a
mediated conference at the request of one or more of the parties. Such requests are kept confidential
by the Court but need not be by the requesting party. Requests for a mediation are usually allowed in
any fully counseled civil appeal. Cases occasionally are referred by hearing panels for mediation just
before or after oral argument. |
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Mediation Scheduling & Format
Nearly all pre-argument mediations are scheduled before submission
of briefs and calendaring for oral argument. Written notice from the Court is emailed to each party's
representative in advance of the mediation date. Most mediations are by telephone with the Court
initiating the calls. However, if convenient and beneficial, mediations may be in person.
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Most mediations begin with the mediator briefly explaining the
mediation process. The focus of discussion usually moves fairly quickly to explication of the issues on
appeal. The purpose of this discussion is not to decide the case or reach conclusions about the issues,
but to understand what the issues are and to evaluate the risks on appeal. The mediator will also
inquire as to any procedural questions or problems counsel might have that could be resolved by
agreement. These might include questions about the joint appendix or the need for a specially tailored
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Initial mediations typically last an hour and sometimes longer. In
many cases, the discussions go no further. Often, proposals are generated that require further review
so follow-up discussions may continue for days or weeks or longer. If negotiations continue
productively and all parties and the Circuit Mediator agree, briefing may be postponed for a reasonable
time until negotiations are completed. Follow-up telephone or in-person mediations may be scheduled,
with or without clients, as necessary, to fully pursue all chances for negotiated settlements.
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What Participants Can Expect
Generally, participants can expect the Circuit Mediator to
facilitate or lead a thoughtful and sometimes detailed exploration of the case. The extent of the
mediator's preparation will vary with the amount of information available at the time of the mediation.
Usually the Circuit Mediator will have read the district court's opinion as well as the docketing
statement. The Circuit Mediator will inquire about settlement and will probe for each party's interests
if they are not immediately evident, often in private caucuses with each party. Every effort will be
made to generate offers and counter-offers until the parties either settle or know the case cannot be
settled and by how much it cannot be settled. Mediations are relatively informal. They are, however,
official proceedings of the Court.
What the Court Expects
The Court attempts to identify lead counsel for all parties when
scheduling mediations. This is not always possible so those notified of the mediation conference are
asked to advise the Court in advance of the mediation if other counsel will be attending.
Considerable time and effort is expended in preparing for and
participating in these mediations, and attitudes and perceptions of participants frequently change in
the process. Experience shows that this time and effort may be wasted and opportunities for settlement
lost when the lawyers attending the mediation are not the lawyers on whose judgment the client will
primarily rely when making decisions. The perceived tactical advantage of sending to the mediation an
attorney with limited knowledge or authority is more than offset by the lost opportunity to influence
or be influenced by this informed evaluation and settlement discussion. Thus, lead counsel are asked to
come prepared to articulate their view of the merits of the case as well as their clients' interests
While counsel are to have authority to make and respond to offers,
the Circuit Mediators do not necessarily expect counsel to have absolute settlement authority. Our
experience is that in most cases there is more movement from prior settlement positions than anyone
expected, requiring further consultation with clients. Thus, counsel may wish to have clients present,
or available by phone, at the time of the mediation. Clients are not required to be present at most
Mandatory Participation - Voluntary Settlement
Fourth Circuit Rule 33 requires the participation of all parties in
scheduled mediations, usually through their counsel. Sometimes the purposes of the mediation cannot be
achieved without the involvement of individuals or groups who are not parties to the appeal; such
parties may be invited to participate. No actions affecting the interests of any party or the case on
its merits, however, will be taken without the consent of all parties.
By rule, nothing said in any mediation by the participants,
including the Circuit Mediator, may be disclosed to anyone in the Fourth Circuit Court or any other
court that might ever deal with the case. Disclosure is also prohibited to any person outside those
participating directly or indirectly in the mediation process. This applies in all cases, including
ones referred for mediation by the Court. This court rule does not apply to any settlement agreements.
However, this in no way prohibits the parties from separately contracting that the terms of their
agreement shall remain confidential.