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Click the question below to view the answer on that topic. |
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Eligibility for Mediation and Setting of Cases for Mediation |
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What cases are eligible for mediation? |
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May I request mediation? |
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How will I know if my case has been set for mediation? |
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Is mediation required? |
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Impact of the Mediation Process on the Appellate Process |
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Is the appellate process stayed during the mediation process? |
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The Mediation Process |
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How will the mediation session be conducted? |
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Will the mediation be conducted by telephone or in person? |
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Is
the mediation confidential? |
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How do I best prepare for the mediation? |
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What cases are eligible for mediation? |
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All civil cases filed in the 10th Circuit except
pro se, social security, prisoner rights, and habeas
corpus appeals are eligible for mediation. |
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May I request mediation? |
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A request for mediation may be made by calling or
writing the Circuit Mediation Office at any time during the pendency of the
appeal. If a party prefers that a request for mediation be
confidential, the Mediation Office will not disclose that the conference was requested. Requested
conferences are scheduled and approached in the same manner as those
initiated by the Circuit Mediation Office.
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How will I know if my case has been set for mediation? |
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Within fourteen days of filing a notice of appeal,
appellants are required by Tenth Circuit Rule 3.4 to file a
docketing statement in which they state the issues being raised on
appeal and the background of the case. The Circuit Mediation Office
schedules a case for a mediation conference from the docketing
statement, usually before briefing and sometimes before the
transcript is completed. Counsel will receive a Mediation Conference
Notice, which is an order of the Court. The Notice sets the date and time
of the mediation conference, the purpose of the conference, and the
expectations regarding settlement authority. |
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Is mediation required? |
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Although mediation conferences are relatively
informal, the Court considers them official proceedings and requires
the participation of all parties, usually through their counsel. See
Pueblo of San Ildefonso v. Ridlon, 90 F.3d 423 (10th
Cir. 1996). Participation in the process is mandatory; decisions
regarding settlement are, of course, voluntary. Sometimes the mediation will involve discussion
and resolution of issues outside the appeal or extend to
individuals or groups who are not parties to the appeal. In the latter event, nonparties
may be invited to participate, though obviously they are not required to do so. |
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Is the appellate process stayed during the mediation process? |
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The appellate process is not automatically stayed during
the mediation process. However, the mediator may abate the preparation of the
transcript or extend or abate the briefing schedule in order to
accommodate the mediation process. |
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How will the mediation session be conducted? |
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The mediation may vary depending on the case and the mediator,
but generally the discussion is informal and conversational. The primary purpose of the mediation is to explore
the possibilities of settlement. Tangentially, it is also used to clarify issues
and resolve procedural problems that may interfere with the smooth
handling or disposition of the case. The mediation is ordinarily
conducted early in the appeal, before briefing. Typically mediation
conferences are conducted by telephone, although in some cases
counsel and clients are required to attend in person.
The mediator conducts the mediation conference in a series of joint and separate sessions,
talking with both sides together and with each side separately. While talking together,
typically at the beginning, the mediator usually asks counsel about any procedural questions
or problems that could be resolved by agreement. These might include questions about the
appendix or the need for a specially tailored briefing schedule. At some point the mediator will shift the discussion to settlement
and may explore the issues in the appeal with counsel and the parties in order to help them
evaluate the risks on appeal. In many cases a candid examination of these risks is helpful
in reaching consensus on the settlement value of the case. The discussions may also turn
to matters outside the litigation that are nonetheless important to understanding the nature
of the parties’ dispute and to uncover the obstacles to and the avenues toward resolution.
The discussions may be with all parties present or with each side privately.
Counsel should set aside at least two hours for the
initial mediation conference. In some cases, discussions
may go no further. In other cases, follow-up discussions
may continue for days or weeks, and sometimes longer.
If a settlement is reached, the mediator often
sends counsel a stipulation to dismiss or motion for
voluntary dismissal. See link to Stipulation to
Dismiss and Order of Dismissal. In instances where
settlement is not reached but there is agreement
about procedural matters (for example, modification
of the briefing schedule, consolidation of appeals,
abatement, etc.), the mediator will have an
appropriate order issued to effect that agreement.
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Will the mediation be conducted by telephone or in person? |
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Typically the mediation conferences are conducted
by telephone. However, if the mediator believes it would be useful, parties and counsel may be required to attend an
in-person mediation. |
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Is the mediation confidential? |
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All communications in the course of a mediation conference or in any subsequent
discussions are kept confidential. Nothing said during the
discussions is placed in the record or disclosed by anyone to anyone not
participating in the mediation process. Counsel and parties may not refer
to or quote any statement made during the course of these
discussions in their briefs or at oral argument or in any proceeding
in any other court. Furthermore, they may not share the content of these
discussions with anyone outside the mediation process, such as reporters
or other members of the media. 10th Cir. R. 33.1(D). See Clark v. Stapleton Corp., 957 F.2d
745 (10th Cir. 1992). Discussions under 10th Circuit Rule
33.1 may not be recorded by counsel or the parties. |
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How
do I best prepare for the mediation? |
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The Circuit Mediation Office attempts to identify
lead counsel (the attorneys on whose judgment the clients rely when
making decisions) for all parties when scheduling conferences. This
is not always possible, so addressees are asked to advise the
Circuit Mediation Office in advance of the conference when other
counsel, or parties, should be involved.
Mediation discussions are most effective when counsel
are thoroughly familiar with the issues of the case
and have considered how the lower court’s decision
may have affected litigation strategy. Prior to
the conference, counsel should discuss with their
client: 1) realistic goals and expectations for the
mediation; 2) a cost-benefit analysis of the risks
and costs of further litigation versus settlement,
including attorney fee issues; 3) the client’s
interests and goals underlying the litigation;
4) ways, both through and apart from continued litigation,
those goals and interests might be addressed; and
5) to the extent that the goals and interests of the
other parties are known, possible ways that those
might be accommodated. Counsel should encourage
their client to be prepared to participate fully
in the settlement process with a flexible and
open-minded attitude. Counsel are encouraged to
be creative in generating new settlement options.
A confidential
settlement position paper is not required. |
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