The U.S. Circuit Courts of Appeals have, for many years, administered their own mediation programs for civil cases. The administrators and mediators in such programs are, typically, Federal employees.
Such mediation programs are also characterized, typically, by the following:
–mandatory referral of cases to mediation with no-extra-charge for mediator services
–mediation at the earliest stages of an appellate case and deferred briefing deadlines until the conclusion of the mediation effort
–high participation levels and strong settlement success rates
BUDGET PRESSURES
With the numbers of Federal employees involved in circuit court mediation programs, the costs of such programs to the Federal government are an obvious issue. Most of these programs should be able to easily justify the expenses involved. But for some, cost is an ongoing concern. And budget pressures seem likely to increase.
A NEED FOR SPEED: COMMERCIAL AND BANKRUPTCY CASES
Commercial and bankruptcy cases often have an ongoing business need for resolving disputes quickly. Business urgencies and a need for speed often dwarf the usual timing and development of a lawsuit or an appeal. Accordingly, the prospect of waiting a year-or-two for an appellate decision is often problematic. Early appellate mediation, in such cases, provides an early opportunity for the parties to resolve their disputes in light of business urgencies.
VOLUNTARY IS NOT ADEQUATE
The voluntary-mediation experience in U.S. Circuit Courts of Appeals, historically, is this: mediation does not occur, despite the business urgencies. Who knows why this reality exists. Perhaps the parties believe they will appear desperate-to-settle by suggesting mediation. Or maybe the parties don’t even think about mediation on appeal. But whatever the reason, history shows that mandatory mediation requirements are needed for mediation to occur in the U.S. appellate courts.
Consequently, any budget-related cutbacks to existing mediation programs in the Circuit Courts could limit the availability of mediation and thereby impair the interests of the parties on appeal.
A SOLUTION: PRIVATE MEDIATORS
The use of private mediators to fill-in budgetary gaps could be a cost-effective way for the Circuit Courts of Appeals to continue providing (and even increase) the levels of their current mediation services.
Parties on appeal would share the mediator fee.
Expense Issues
I can appreciate the concern for keeping expenses of appeal, for the parties, at a minimum. But I don’t see this concern as a problem with private mediators:
–Any party, who has litigated a commercial or bankruptcy case all the way into an appeal before a U.S. Circuit Court of Appeals, has already demonstrated a tolerance for incurring substantial fees. So, the cost of a private mediator should not be an undue burden at the Court of Appeals level.
–Or, if the mediator’s fee is a problem for a particular party, accommodations can be made case-by-case.
New Jersey’s Presumptive Mediation as a Cost Solution
The New Jersey Bankruptcy Court provides an example of how mandatory mediation rules can be softened to address cost concerns. The example is called “Presumptive Mediation” in that Court.
Here are the operative portions, with italics added for emphasis, of the Presumptive Mediation rules in New Jersey:
D.N.J. LBR 9019-2. Mediation: Procedures
(a) Referral to mediation.
(1) Every adversary proceeding will be referred to mediation after the filing of the initial answer to the adversary complaint, . . . [exceptions specified] . . .
(3) A party subject to presumptive mediation may file a motion requesting to be excused from mediation participation, or requesting a determination that the mediation should not proceed.
If the cost of mandatory mediation is truly a concern, this concern can be minimized, or even eliminated, by New Jersey’s Presumptive Mediation approach.
Conclusion
Private mediators are a good solution to budget pressures that might threaten mandatory mediation, and its many proven benefits, at the U.S. Circuit Courts of
Appeals!
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MEDIATBANKRY 
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