Mediation is voluntary in the sense that litigants participating in the mediation process are free to reach their own decision about the disposition of the appeal and the underlying dispute. Likewise, they are free to reject an agreement and, with the concurrence of the mediator, to bring the mediation process to a close.

The decision as to whether to participate in the mediation process, however, is not voluntary. Cases are selected for referral to mediation by court of appeals staff in the Clerk’s Office and the Appellate Mediation Program. Although counsel for the parties often are consulted before the referral is made, litigants are expected to participate in good faith in the process once the case is referred. As noted above, “good faith participation” does not require the parties to reach agreement.