Mediation

Goal:

The goal of mediation is to reach a mutually satisfactory agreement resolving all or part of the dispute by carefully exploring not only the relevant evidence and law, but also the parties’ underlying interests, needs and priorities.

See ADR LR 6-1.

Process:

Mediation is a flexible, non-binding, confidential process in which a neutral mediator facilitates settlement negotiations. The informal session typically begins with presentations of each side’s view of the case, through counsel or clients. The mediator, who may meet with the parties in joint and separate sessions, works to:

improve communication across party lines
help parties clarify and communicate their interests and understand those of their opponent
probe the strengths and weaknesses of each party’s legal positions
identify areas of agreement and
help generate options for a mutually agreeable resolution.

The mediator generally does not give an overall evaluation of the case. Mediation can extend beyond traditional settlement discussion to broaden the range of resolution options, often by exploring litigants’ needs and interests that may be independent of the legal issues in controversy.

See ADR LR 6-1 and ADR LR 6-10.

Preservation of Right to Trial:

The mediator has no power to impose settlement and does not attempt to coerce a party to accept any proposed terms. The parties’ discovery, disclosure and motion practice rights are fully preserved. The parties may agree to a binding settlement. If no settlement is reached, the case remains on the litigation track.

The Neutral:

The court’s ADR staff appoints a mediator who is available and has no apparent conflicts of interest. The parties may object to the mediator if they perceive a conflict of interest. Mediators on the court’s panel have the following qualifications:

admission to the practice of law for at least seven years (if a lawyer)
experience in communication and negotiation techniques
knowledge about civil litigation in federal court
training by the court.

The court’s panel also includes non-lawyer mediators if they meet the other qualifications and they have appropriate professional credentials in another discipline. Non-lawyer mediators are appointed only with the consent of the parties.

See ADR LR 2-5 and ADR LR 6-3.

Attendance:

The following individuals are required to attend the mediation session in person:

clients with settlement authority and knowledge of the facts
the lead trial attorney for each party
insurers of parties, if their agreement would be necessary to achieve a settlement

Requests to permit attendance by phone rather than in person, which will be granted only under extraordinary circumstances, may be made to the ADR Magistrate Judge. Clients are strongly encouraged to participate actively in the mediation.

See ADR LR 6-9.

Confidentiality:

Communications made in connection with a mediation ordinarily may not be disclosed to the assigned judge or to anyone else not involved in the litigation, unless otherwise agreed.

See ADR LR 6-11.

Timing:

A mediation may be requested at any time. The time for conducting the mediation session is presumptively 90 days after the order of referral, unless another deadline is fixed by the court. The mediator contacts counsel to schedule an initial telephone conference to set the date, time and location of the mediation session and to discuss how to maximize the utility of mediation.

See ADR LR 6-4, ADR LR 6-5 and ADR LR 6-6.

Written submissions:

Counsel exchange and submit written statements to the mediator at least 7 days before the mediation. The mediator may request or accept additional confidential statements that are not shared with the other side. These statements are not filed with the court.

See ADR LR 6-7.

Appropriate cases/circumstances:

All civil cases in which the parties are represented by counsel are eligible. Cases with the following characteristics may be particularly appropriate:

the parties desire a business-driven or other creative solution
the parties may benefit from a continuing business or personal relationship
multiple parties are involved
equitable relief is sought — if parties, with the aid of a neutral, might agree on the terms of an injunction or consent decree
communication appears to be a major barrier to resolving or advancing the case.

See ADR LR 6-2.

Cost:

Mediators shall volunteer up to two hours of preparation time and the first four hours in a Mediation. After
four hours of Mediation, the mediator may (1) continue to volunteer his or her time or (2) give the parties the option of either concluding the proceeding or paying the mediator. The proceeding will continue only if all parties and the
mediator agree.If all parties agree to continue, the mediator may then charge his or her hourly rate or such other rate that all parties agree to pay.

See ADR LR 6-3(c).