Vol. 9, No. 3, Pg. 28. Appellate Mediation in the Fourth Circuit: An Idea That Works.

• Author: By Thomas F. Ball III

South Carolina Lawyer

1997.

Vol. 9, No. 3, Pg. 28.

Appellate Mediation in the Fourth Circuit: An Idea That Works

28Appellate Mediation in the Fourth Circuit: An Idea That WorksBy Thomas F. Ball IIIWithout a crystal ball, it is impossible to predict the outcomes on appeal with precision. Nonetheless, parties and lawyers want to know where they likely stand and frequently base their future decisions on those assessments. Mediators in the Fourth Circuit help lawyers make those evaluations by asking tough questions.

Why attempt to settle cases on appeal? In the past, that question either has not been raised or has been instinctively rejected. Typically, appellants and appellees have viewed the idea of appellate settlement skeptically - they each have different motivations that impel them toward more litigation in the appellate court. However, appellate mediation, a nonadversarial process that encourages voluntary resolution of disputes, is now utilized in at least 11 of the federal circuit courts of appeal and is becoming a routine exercise in federal appellate practice.

The appellate mediation program in the Fourth Circuit commenced in August 1994. The results from the Fourth Circuit experience demonstrate that when lawyers and their clients seriously examine whether appellate litigation really serves their interests, a significant number of the cases (37 percent) actually settle.

THE FOURTH CIRCUIT PROGRAM

Under Fourth Circuit Local Rule 33 (which is derived from Fed. R. App. P. 33), parties in civil cases, excluding prisoner and agency cases, are subject to mandatory mediation. Pro se cases are ineligible for the program.

Eligible cases are referred from the Clerk's Office to the mediation program and are screened by Senior Conference Attorney Harry Martin. The selected cases are then assigned to one of the four mediators in the program. A mediation conference will then be scheduled by the mediator, taking into account any briefing schedule.

For the convenience of the lawyers, mediation conferences in the Fourth Circuit program are primarily conducted by a telephone conference call initiated by the mediator but can be conducted in person when circumstances dictate. Parties are not required to attend the mediation conference but may join the conference if they wish. Of course, the primary purpose of the conference is settlement, but the mediator also assists with...