Random Selection of Cases for Mandatory Mediation = A “Spectacular Success” in the U.S. Circuit Courts of Appeals

A “Spectacular Success” from an Early Innovator

By: Donald L. Swanson

Back in the 1970s, Chief Judge Irving Kaufman of the U.S. Second Circuit Court of Appeals established an experimental mediation program called Civil Appeals Management Plan (“CAMP”) to deal with burgeoning caseloads.


One CAMP feature, implemented for experiment and testing purposes, is the random selection of cases for mandatory mediation.  This experiment / testing feature is explained like this:

“The division of all cases meriting CAMP attention into groups by a random process provides the greatest possible assurance that the groups are equivalent. . . . It is akin to flipping a coin, but much more exact. The administration of CAMP procedures, either separately or collectively, to one group (the “experimental” or “treatment” group), and the withholding of CAMP procedures from another group (the “control” group) provides the clearest proof that observed differences . . . are caused by CAMP procedures.”

–“For example, if none of the experimental cases reached a panel of judges for decision, but all of the control cases went to the panel, it could be said with some assurance that CAMP caused the reduction in panel considerations.”

–“Similarly, if half the cases in each group reached three-judge panels, it could be said with some assurance that the CAMP procedures had no effect.”

[The foregoing is from a July 1977 Report by Jerry Goldman for the Federal Judicial Center titled: “An Evaluation of the Civil Appeals Management Plan: An Experiment in Judicial Administration.”]


After the CAMP program had been in effect “for about a year,” evaluation results are “inconclusive.”  The Court, nevertheless, remained committed to the program, and the findings of a second evaluation in 1983 are “strikingly more favorable”:

–“the hoped-for increase in settlements of appeals, which eliminated the need for full argument, was achieved at statistically significant levels.

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

–Beneficial effects of the program include:

–“settlement or withdrawal of appeals that would otherwise have to be considered by three-judge panels”;

–“faster disposition” of cases;

–improved “quality of briefs and argument in some appeals”;

–improved resolution of “procedural problems”; and

–most lawyers “regard the program favorably, and some are lavish in their praise.”

[The foregoing is from an August 1983, Reevaluation of the Civil Appeals Management Plan, by Anthony Partridge and Allan Lind, for the Federal Judicial Center.]


Random selection of cases for mandatory mediation has been retained as a central feature for mediation programs in most of the U.S. Circuit Courts of Appeals.  An analysis of the Third Circuit’s mediation program illustrates why:

The decision to establish the Mediation Program is “one of the wisest the Court has ever made, for it has been a spectacular success.”  During the 2001 statistical year, for example:

–“159 cases were settled.  It would have taken over four panels of the Court-12 judges, each of whom would have had to read large amounts of material-to prepare for and decide these cases”;

–“Since the Program’s inception, almost one thousand cases have been settled! This represents an enormous relief for a Court that must dispose of approximately 1,700 appeals per year and which currently has two long-unfilled vacancies”;

–The program is “enormously successful. On average, 37% of the cases accepted for mediation are settled”;

–The program “has had no adverse effect on the development of Circuit law. The Court writes precedential opinions in only 15% of its cases. That number has remained consistent since the inception” of the program;

–Without the program, judges “would have faced additional burdens that would have made it difficult for them to produce so many precedential opinions of high quality”; and

–Given the uncertainties and huge cost of litigation at all levels, “the highest form of justice that courts can produce is a freely negotiated settlement between the parties.”

[The foregoing is from Becker, Forword to Appellate Mediation in the Third Circuit, 47 Vill. L. Rev. 1055 (2002).]


Positive results from these programs in prior decades, involving mandatory mediation of randomly-selected cases, have continued.  Such reality is shown in the experience of the Sixth Circuit Court of Appeals:

–The Sixth Circuit’s mediation program began in 1981 to “decrease the court’s rapidly growing docket.”

–Under this program, “about 1000 appeals” are selected each year for mediation, usually “at random.”

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

–It “settles about 40%” of mediated appeals.

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

[The foregoing is from Paulson, Understanding the Sixth Circuit: The Office of Circuit Mediators, Sixth Circuit Appellate Blog (April 6, 2012).]


It’s always tricky to talk about cause-and-effect.  And correlation does not necessarily equate to causation.  Nevertheless, here’s what we can say on this with certainty:

–The “spectacular success” of mediation programs in the U.S. Circuit Courts of Appeals, over a long period of time, demonstrates the viability of mandatory-mediation for randomly-selected cases.

**  If you find this article of value, please feel free to share.  If you’d like to discuss, let me know.



















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