Federal Circuit Leads-the-Way for Holdouts Adopting Local Mediation Rules

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Leading the Way

By: Donald L. Swanson

The U.S. Circuit Court of Appeals for the Federal Circuit has been a maverick.  For decades it was the lone mediation holdout among all U.S. Circuit Courts of Appeals.

In the mid-1970s, a mediation program is pioneered by one of the Circuit Courts.  By 1987, five of the thirteen Circuit Courts have mediation programs.  By 1992, only five holdouts remain.  And by 1996, every single one of the thirteen Circuit Courts has a mediation program – except for the Federal Circuit.

Hold-Out Perseverance

It’s not until 2005, that the Federal Circuit finally adopts a mediation program – which, of course, is similar to that of other Circuit Courts.

That’s a striking record of hold-out perseverance: years of standing apart from the crowd . . . unwavering refusals to be persuaded . . . a steadfast posture against the winds of change!

But . . . I’m not sure that’s a compliment.

It seems more like stubbornness . . . refusals to adjust-with-the-times . . . resistance-to-change.

And it’s not like the Federal Circuit had a solid rationale for its hold-out perseverance:

–Studies of mediation programs in other Circuit Courts had been reporting “spectacular successes” for decades.

–Parties, and their attorneys, appearing before the Federal Circuit had extensive experience with mediation in other judicial contexts.

–A primary hold-out rationale was that the Federal Circuit’s patent cases are highly complex and, therefore, “ill-suited” to mediation.   Such rationale is proven to be spectacularly wrong.  In fact, the existence of complexity points in exactly the opposite direction: to the necessity for utilizing mediation.

An Example to Bankruptcy Courts

The Federal Circuit’s mediation holdout history should serve as an example for our holdout bankruptcy courts that continue in their failures or refusals to adopt local mediation rules.

The Federal Circuit’s example should prompt the holdout bankruptcy courts to action.

–These bankruptcy courts are behind-the-times.

–Their non-action appears to be the result of stubbornness and resistance-to-change: not based on principal.

–They are rejecting a dispute-resolution tool that is being used:

–in nearly all other Federal courts;

–throughout the entirety of the Executive Branch of the Federal Government; and

–throughout the vast majority of all U.S. State courts.

There is no excuse for continued inaction by the bankruptcy courts on adopting local mediation rules.  Model Local Rules on mediation are available from the American Bankruptcy Institute.

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