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Archived updates for Wednesday, August 03, 2005

CAFC Appellate Mediation Pilot Program Begins October 1, 2005

The U.S. Court of Appeals for the Federal Circuit issued an en banc order on August 1, 2005 establishing an appellate mediation pilot program that will start on October 3, 2005. Participation in the court’s mediation program is voluntary and the process will result in a settlement only if all parties agree on that resolution. However, according to the Guidelines, "counsel are expected to be receptive to exploring mediation" and "any party, counsel or mediator who fails to materially comply with any of the provisions of this document may be subject to appropriate sanction by the court." Two new forms -- Docketing Statement and Confidential Joint Request to Enter Appellate Mediation Program -- were also issued on the same day.

All cases where the parties are represented by counsel are eligible for the pilot program, except for mandamus petitions, ex parte appeals from the Patent and Trademark Office, antidumping and countervailing duty cases, International Trade Commission cases, TECA-legacy cases, and petitions for review of the Secretary of Veterans Affairs’ rulemaking. The purpose of mediation is a settlement of the case. At least for purposes of this pilot program, the mediator will not be asked to narrow the issues on appeal. To the extent that the parties agree to narrow the issues, that will be reflected in their briefs.

The pilot mediation program will be administered by the Circuit Mediation Officer, in the Office of the Clerk and Circuit Executive, and overseen by a three-judge committee. The Circuit Mediation Officer will contact principal counsel in selected cases to determine whether the case is a good candidate for mediation and whether counsel agree to participate. At that time, the Circuit Mediation Officer will ask counsel to determine whether the appeal and, if pertinent, the cross-appeal, present any jurisdictional defects.

The Federal Circuit Bar Association will be asked to provide the court with a list of distinguished, experienced attorneys and academicians with expertise in the substantive areas of the court’s jurisdiction, as well as attorneys with experience mediating. The selected mediators must not be in active practice and must be from the District of Columbia metropolitan area. The court will then select a roster of mediators from the list. Mediators will not be paid for their services, but will be reimbursed by the court for minor out-of-pocket expenses, such as photocopying costs, telephone charges, facsimile charges, and transportation to the courthouse.

The Circuit Mediation Officer must select a mediator from the court’s list with one exception. If counsel jointly propose a mediator not on the list, then the Circuit Mediation Officer will have the option of appointing that mediator, provided the parties agree to pay any out-of-pocket expenses of the mediator and the mediator agrees to serve pro bono.

If at the outset it appears to the Circuit Mediation Officer that mediation would not be fruitful, then court mediation efforts will cease. If all parties agree that mediation would be useful, then the Circuit Mediation Officer will select and refer the case to an outside mediator. In addition, counsel may confidentially jointly request that a case be included in the mediation program. A Confidential Joint Request to Enter Mediation Program form is available from the clerk’s office and on the court’s web site. Such a request will not appear on the court’s docket sheet, and will be directed to the Circuit Mediation Officer.

The mediator is not bound by a defined formula or approach to mediating a case and the mediator will conduct the mediation as he or she deems appropriate. However, the court "requires that counsel attend all sessions and that, at least one time during the process, counsel and the parties (or someone with actual settlement authority) meet face to face." Nonetheless, "mediation will cease at any time the outside mediator concludes that further efforts will not be fruitful."

It is contemplated that after a case is referred to a mediator, mediation should be completed in 90 days. At the outside, mediation must be completed within 150 days of the date of reference. At the outset, cases generally will be selected before the first brief is filed. However, the program may later be extended to cases in which briefs have been filed.

While cases in mediation remain subject to the normal scheduling for briefs and oral argument by the clerk’s office, counsel are of course free to file a consent motion for an extension of time pursuant to Fed. Cir. R. 27(h)(4) in the ordinary course by mentioning settlement, but not mediation. If the mediator and the parties believe that multiple mediation sessions are required, that the filing of a brief or the scheduling of oral argument would interfere with good faith settlement efforts, and that additional extensions of time are needed, then a joint motion for additional extensions may be filed. A motion for an extension, beyond the time granted under Rule 27(h)(4), will be referred to the Circuit Mediation Officer. The court has given the Circuit Mediation Officer the authority to grant motions for extensions, upon the showing of good cause, up to a date that is no more than 150 days after the case was referred to the mediator.
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