The First-Ever Formal Mediation in Federal Court?

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Judge Irving Kaufman

By: Donald L. Swanson

Judge Irving Kaufman is famous for many things, such as presiding over the Rosenberg espionage trial and rejecting the U.S. government’s attempt to deport John Lennon to the United Kingdom.

But Judge Kaufman’s greatest legacy may be for his role in developing mediation as a primary dispute resolution tool in the United States federal courts. [Fn. 1]

Irving Kaufman served as a Judge of the U.S. Second Circuit Court of Appeals from 1961 to 1987 and as its Chief Judge from 1973 to 1980.

In late 1973, as the newly-installed Chief Judge, Irving Kaufman writes to Chief Justice Warren E. Burger of the United States Supreme Court about an experiment-in-mediation that he had conducted.

Here’s what Judge Kaufman’s letter says:

“To determine whether restrained and dignified encouragement by the court would facilitate settlement, I decided to experiment personally with the procedure [of pre-argument conferences authorized by Fed.R.App.P. 33].

“Five cases were selected at random from among a group of cases which seemed to lend themselves to private dispute resolution and which were in the early stages of the appellate process.”

“I met with the attorneys and, although my role was limited to that of catalyst, all five cases were terminated by settlements that were entirely satisfactory to the parties.”

Could these experimental interventions by Judge Kaufman be considered the first formal mediations in the U.S. federal courts?

I say, “Possibly.”

Granted, Judges have always, and in multiple ways, encouraged parties to settle their disputes.  And many judges, over the centuries of our jurisprudence, have filled mediation-type roles in many, many cases over which they preside.

But Judge Kaufman’s experiment is different.

Judge Kaufman, in his experimentation, is trying to develop a new and creative program of mediation to address burgeoning caseload problems in the U.S. Federal courts.

–One commentator has observed, about Judge Kaufman’s mediation experiment, that no U.S. Court of Appeals had ever before “made efficacious and systematic use of prehearing conferences to encourage informal dispute resolution.”

Judge Kaufman then follows-up his five-case mediation experiment and letter to Chief Justice Burger with action:

  • He seeks and obtains financial support from the Federal Judicial Center to further-experiment with mediation possibilities; and
  • Such financial support is then used to hire a senior attorney and staff to conduct mediation activities.

Judge Kaufman’s experimentation and follow-up action are now institutionalized in mandatory mediation programs currently operating in nearly all of the U.S. Circuit Courts of Appeals.

We all owe a debt of gratitude to Judge Irving Kaufman for his foresight, creativity and pioneering action in developing mediation as a primary dispute resolution tool.

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Footnote 1.  Information in this article is from Becker, Forword to Appellate Mediation in the Third Circuit, 47 Vill. L. Rev. 1055 (2002).

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