U.S. Circuit Courts of Appeals: Above-and-Beyond Examples of How a Federal Mediation Rule Works (Part 2)

Above and Beyond

By: Donald L. Swanson

How can this be?!

Federal rules of procedure contain mediation provisions for every bankruptcy-related court, except for the bankruptcy courts themselves.

Why this discrimination against bankruptcy courts??!!

[By bankruptcy-related courts, I’m referring to:

–the bankruptcy courts themselves;

–the U.S. district courts, in both their trial and bankruptcy-appeal capacities;

–the bankruptcy appellate panels; and

–the U.S. courts of appeals.]

Federal Rule of Appellate Procedure 33

The U.S. circuit courts of appeals are governed by Federal Rules of Appellate Procedure.  Fed.R.App.P. 33 provides, in part, as follows (emphasis added):

The court may direct the attorneys—and, when appropriate, the parties—to participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement. . . . Before a settlement conference, the attorneys must consult with their clients and obtain as much authority as feasible to settle the case.

Local Rules

In response to this Rule 33, the circuit courts have each adopted a local Rule 33 on settlement discussions and conferences (i.e., mediation).

Mandatory Mediation

Surprisingly [to me, at least], a large majority of the U.S. courts of appeals have gone above-and-beyond by adopting local rules for mandatory mediation!

The Sixth Circuit Court of Appeals, for example, has its own local mediation rules and processes for mandatory mediation.  A blog article describes the Sixth Circuit’s mandatory mediation program like this:

–“The four mediation attorneys in the Sixth Circuit (and their staff) select about 1000 appeals each year for mediation.”

–“Cases are usually chosen at random”:

“[T]he mediators moved to random selection when they found that cases that appeared to be amenable to mediation were not actually more likely to settle than any other case.”

–“The Sixth Circuit’s mediation program has an impressive success rate”:

–“[T]he program settles about 40% of appeals that participate in mediation.”

–“In 2011, the . . . 400 cases resolved by the circuit mediators . . . represent about a third of all of the civil cases resolved on the merits.”

Overall Success

An article examining mediation programs operating in the U.S. courts of appeals, under Fed.R.App.P. 33, reaches this conclusion (emphasis added):

“The mediation programs established in the vast majority of the circuit courts of appeals work well to reduce the caseload burdens on their respective courts and to resolve litigants’ cases.”

–“This appears to be due in large measure to the mandatory aspects of those programs.”


So . . . why should all the courts in the bankruptcy-related system have a Federal rule on mediation, except for the bankruptcy courts?  This is wrong!!


  1. The Federal Rules of Civil Procedure provide for mediation in U.S. district court trial proceedings, as noted in this article [the first article of this three-part series].
  2. The third article in this three-part series will focus on how the U.S. district courts (in their appellate capacity) and the bankruptcy appellate panels operate under federal rules of procedure on mediation; as do other courts and agencies throughout the entire Federal system.


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