Innovation by the Second Circuit: Creating a Mediation Pathway in the 1970s

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The pathway is now well-used

By: Donald L. Swanson

“The civil Appeals Management Plan (CAMP), now operating in the United States Court of Appeals for the Second Circuit, is an innovative set of reforms in the appellate process. . . . This is the first time the [mediation] procedure has been implemented systematically.”

–1977 Report of the Federal Judicial Center, “An Experiment in Judicial Administration.”

Funding and Rationale for the Innovation

The CAMP mediation program began in 1974 as an experimental effort by the U.S. Second Circuit Court of Appeals.  The program got off the ground with initial financial support from the Federal Judicial Center.

A burgeoning caseload rationale for this experiment-in-mediation is explained in the 1977 Report like this:

“Today, it is common to point to the dramatic growth in the business of federal courts over the last fifteen years.  While growth in court business is nothing new, the increase in the business of the federal courts of appeals during the last two decades is unprecedented in the history of this institution.”

“Demands for the services of the federal appellate courts seem to have outstripped the available supplies.  There are strong suggestions that simply meeting the growth in demand with increased resources is unsatisfactory for the court of appeals. An increase in the number of active judgeships for a circuit is not without its own costs.”

Innovation Results

An initial evaluation of the mediation program in this 1977 Report found little to cheer or brag about:

“The results . . . suggest suspending judgment on CAMP. It seems clear that the plan does not yet live up to early expectations, but the evidence does not prove the CAMP idea ineffective.  . . . Rigorous evaluation is essential to any further work in this area. Without such research, effective reform of the appellate process will remain an elusive goal.”

However, a 1983 follow-up evaluation and Report contains these “strikingly more favorable” conclusions:

“The Second Circuit remained committed to the CAMP concept and maintained the program” after the 1977 Report.

“The findings in this second evaluation are strikingly more favorable. The benefits disclosed by the first study persisted into the period covered by this evaluation.”

“Of even greater significance, the hoped-for increase in settlements of appeals, which eliminated the need for full argument, was achieved at statistically significant levels.”

“A number of federal and state courts have launched programs reflecting the CAMP approach; still others are presently considering a variety of related programs.”

–“The measure of potential benefits identified in this study will certainly be encouraging to those courts.”

–“Indeed, the potential is so great that all persons sharing responsibility for the management of appellate caseloads should give these procedures serious consideration.”

See, 1983 Report of the Federal Judicial Center, “Reevaluation of the Civil Appeals Management Plan.”

Demonstration of Success

The success of the Second Circuit’s mediation experiment is demonstrated in the following information:

–by 2001, all U.S. Circuit Courts of Appeals “have well-established mediation programs” similar to the Second Circuit’s CAMP program.  There is, however, one exception and one variation:

–The exception.  “The U.S. Court of Appeals for the Federal Circuit is the only Circuit Court of Appeals that does not have a mediation program that provides third party assistance to parties seeking an alternative to appellate litigation. . . .  The Federal Circuit does not provide any form of mediation . . . leaving unassisted settlement negotiations or appellate litigation as the only options.

[Note:  Effective December 6, 2013, the Federal Circuit adopted a mediation program similar to that of other circuits.]

–The variation.  The Eighth Circuit’s mediation program is voluntary, while mediation programs in the other Circuits are mandatory.

The various Circuit Courts adopted mediation programs under Fed.R.App.P. 33 in the following years:

1974  —  Second Circuit (as discussed above)

1981  —  Sixth Circuit

1981  —  Eighth Circuit

1984  —  Ninth Circuit

1987  —  D.C. Circuit

1991  —  Tenth Circuit

1992  —  First Circuit

1992  —  Eleventh Circuit

1994  —  Fourth Circuit

1994  —  Seventh Circuit

1995  —  Third Circuit

1996  —  Fifth Circuit

See, Ginsburg, The Case for a Mediation Program in the Federal Circuit, 50 American University Law Review 1380 (2001).

The Federal Circuit adopts a similar mediation program in 2005.

Editorial Comment

The Second Circuit’s mediation program is seven-years to two-decades (and more) ahead of similar programs in the other Circuit Courts of Appeals.  Indeed, the other Circuit Courts followed the Second Circuits innovations and lead.

Obviously, we owe a debt of gratitude to the Second Circuit for its foresight, creativity and pioneering efforts on mediation and for blazing a now-well-used pathway toward mediation as a primary dispute-resolution tool for the Federal judicial system!

 

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