Mediation sessions may be conducted in-person, virtually by video, and by phone. In-person sessions may be held in the Courthouse, at the offices of the mediator or counsel for a party, or any other location mutually agreed upon by the parties and mediator.

Agreements reached during mediation must be reduced to writing to be binding. Statements made in mediation, including concessions for the purpose of settlement and consideration of different resolution options, are non-binding. If the parties reach agreement on the disposition of the appeal, they are bound by the written agreement as they would be by any other contract.

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

The decision whether to participate in the mediation process, however, is not voluntary. Cases are selected for referral to mediation by the Mediation Program and attorneys in the Legal Division of the Clerk’s Office, with occasional referrals by a Court panel. Counsel for the parties are usually consulted before a referral decision is made. Litigants are required to participate in good faith in the mediation process once the case is referred.

Not all appellate cases are eligible for referral to mediation. The Court does not refer criminal appeals to mediation. In addition, pro se appeals, while not categorically excluded, are seldom referred and generally only if the pro se party is represented by counsel for purposes of the mediation process.

All other appeals, civil cases and petitions, including government cases, are eligible for referral.

Yes, the mediation process in the Court of Appeals is confidential. The Mediation Office does not inform the judges about the content or progress of a mediation or that a particular case has been, or is currently, in mediation. Similarly, the docket will not reflect that a case is in mediation unless the parties give mediation as the reason for requesting an extension or to place the case in abeyance. Such requests should not include any details about the mediation process or identify the mediator by name.

Mediators are required to keep all matters pertaining to the mediation confidential; however, they may discuss the case with Mediation Office staff, who also must keep such discussions confidential.

The Court expects participating counsel to refrain from commenting publicly about the fact that a case is in mediation or from disclosing any information about the parties’ discussions, or the status of the talks, to anyone who is not – directly or indirectly – a party to the negotiations.

Referral to mediation does not automatically stay or alter the briefing schedule or any other deadlines, nor does it delay their issuance. Unless the Court grants the parties’ requested modification of the briefing schedule, the case will be processed for appellate review, and parties must adhere to all deadlines, just as they would in the absence of a mediation referral. Litigation and mediation may occur simultaneously.

The parties may determine that the chances of resolving the case might be improved if counsel were not required to engage in mediation at the same time that they are preparing their briefs. In that situation, with the concurrence of the mediator, the parties may request an extension of the briefing schedule or to hold the case in abeyance to facilitate the mediation process.

The briefing schedule can be changed if one or more of the parties files a motion with the Court requesting such relief. The motion must: (1) represent that all parties and the mediator (who should be referred as the “mediator” in the motion and not be identified by name) consent to the change in schedule; (2) represent in both the caption and the first paragraph that the change is requested “to accommodate a pending mediation”; and (3) identify precisely the relief sought: e.g., that the case be held in abeyance or that the briefing schedule be extended by a specified number of days.

Neither the mediator nor the Mediation Office has the authority to change a briefing schedule or grant an extension. The parties should be aware that modifying the briefing schedule may alter the oral argument date and engaging in mediation or serious settlement negotiations once the oral argument panel has been assigned may result in a change of the oral argument panel.

Yes, litigants can request mediation in the Court of Appeals. They may complete the “Confidential Request to Enter Appellate Mediation Program” using this link: Request to Enter Appellate Mediation Program (also available on the Forms section of this website) and submit the form to the Mediation Office at mediation@cadc.uscourts.gov. Alternatively, parties may contact the Mediation Office to obtain a copy of the form or with any questions. This form should not be submitted if counsel have already been contacted by the Mediation Office.

The request for mediation is confidential. The form should not be entered into the docket or served upon the other parties to the appeal. Mediation requests are not automatically granted. They are given significant weight by Mediation Program staff, along with other factors in determining whether to refer a case for mediation.

Panel mediators are senior members of the bar, faculty from local law schools, and attorneys with broad experience mediating a variety of civil cases, including petitions and complex actions. They are selected by the judges and trained by the Mediation Office staff. Many have served as mediators for a decade or more. Mediators are assigned cases based on their qualifications, experience, areas of expertise, and availability.

No, litigants may not select the mediator who will work on their case. The mediator assigned to the case is selected by the Mediation Office staff. The staff welcome suggestions from counsel and parties as to the experience or style that would be most useful in a particular case and will often work with the parties to make the best possible selection. A mediator with specific subject matter expertise usually will be assigned. Attorneys are encouraged to contact the Mediation Office to discuss any aspect of a prospective mediation.

The Court’s Mediation Order requires the parties to send the mediator a position paper following official notification of the mediation referral. The position paper is not a brief and should not be served upon other parties to the appeal or filed with the Court. The mediator has the discretion to change the contents of the position papers and the submission date. The mediator also may waive submission of the position papers. Counsel should check with the mediator before preparing or submitting a position paper.

During the course of the mediation process, counsel should provide the mediator with any documents the mediator requests, even if they are not documents of record, or that counsel believes the mediator would find helpful. Additional documents also should not be filed with the Court, and counsel should advise the mediator whether the documents may be shared with other parties and their counsel.

The Court requires that counsel for each party, or another person with actual authority to settle the case, attend each mediation session. The Court’s Mediation Order also includes specific attendance provisions for cases involving the United States or District of Columbia governments. Failure of counsel to attend sessions may result in the imposition of sanctions.

Parties are strongly encouraged to attend mediation sessions. Mediators have the authority and discretion to communicate with the parties and request parties’ attendance. While rare, mediators may communicate directly with a party with or without counsel present. Mediation is most productive when persons with actual knowledge and interest in the outcome of the case participate in the discussions. Mediators generally will speak directly with the ultimate decisionmaker(s) before declaring an impasse or ending the mediation.

If a party is consulting with another individual besides their counsel in making decisions during the mediation process, that other individual may attend mediation sessions. They are also bound by the mediation confidentiality requirements. Any questions about someone’s attendance at a mediation session should be raised with the mediator.

Yes. Counsel should feel free to contact members of the Mediation Program staff directly for confidential conversations regarding questions or concerns about participation in mediation, or issues about an on-going mediation. Opposing counsel may need not be included in these conversations.

Yes, counsel should feel free to contact the Chief Circuit Mediator or one of the Circuit Mediators directly for confidential conversations regarding participation in mediation or concerns about the mediation process or mediator (including staff mediators). Opposing counsel need not be included in these conversations. Counsel also should feel free to contact Mediation Office staff about the Mediation Program generally.

Yes, mediation sessions in the D.C. Circuit are conducted in person as well as remotely by video or phone. All three methods may be utilized during the mediation process.

No. Mediation is made available by the Court of Appeals free of charge to the parties.

A mediation may be completed in a single joint session or multiple sessions. The mediator also may engage with the parties in one or more separate sessions.

The mediation process ends either when the parties reach agreement and the appeal is dismissed or withdrawn, or when the mediator, in consultation with the parties, determines that continuing the process will not be productive. If parties reach an agreement in principle, the mediator remains available to assist as the parties finalize the written settlement agreement.

If mediation does not resolve the appeal, the parties may return to mediation later, with the same or a different mediator. Mediation can take place at any time while the case is still pending, including during or after briefing or after oral argument.