Mediation conferences are scheduled routinely in most civil appeals. They are conducted by experienced attorneys trained as mediators employed as Court staff. Although significant attention may be given to procedural questions or problems raised by counsel in a case, the primary purpose of the conference is to provide participants a confidential opportunity to candidly evaluate their case with an informed neutral and to explore interests in and options for voluntary disposition of the appeal.

Case Selection
Cases may be selected for conferences in several ways. Most are selected randomly by the Mediation Office from the pool of all fully counseled civil appeals, excluding prisoner and habeas corpus and most agency cases such as tax, Social Security and NLRB cases. Cases also are scheduled at the request of one or more of the parties. Such requests are kept confidential by the Mediation Office but need not be by the requesting party. Requests generally are granted in any fully counseled civil appeal. Finally, cases occasionally are referred by hearing panels for mediation just before or after oral argument.

Scheduling & Attendance
Nearly all conferences are scheduled before briefing, by written notice from the Mediation Office, three to four weeks in advance of the conference date. If all counsel live in the Cincinnati area, the initial conference usually is held in person. Otherwise, most first conferences are scheduled as telephone conferences with the Mediation Office initiating the calls.

The Mediation Office attempts to identify lead counsel for all parties when scheduling conferences. This designation is not always obvious from early documents so addressees are asked to advise the Mediation Office in advance of the conference of the need for any counsel changes. Sometimes the purposes of the conferences cannot be achieved without the involvement of additional individuals or groups who are not parties to the appeal; such parties may be invited to participate.

Client participation is usually helpful. Best practice usually is to involve clients unless 1) their participation will not enhance the chances of settlement, or 2) counsel are fully authorized to exercise their judgment on the client's behalf with respect to any and all settlement proposals generated. If clients are not present, counsel may wish to have them available by phone.

Conference Format
Most conferences begin with an inquiry as to any procedural questions or problems counsel have that could be resolved by agreement. These might include questions about the joint appendix or the need for a specially tailored briefing schedule. The focus of discussion usually moves fairly quickly to explication of the issues on appeal. The purpose of this discussion is not to decide the case or reach conclusions about the issues, but to understand what the issues are that contribute to the risks on appeal. In many cases, a candid examination of the probabilities for various possible outcomes of the appeal is helpful in reaching consensus on the value of settlement.

The primary focus of most conferences is exploration of possible alternatives to the litigation. Parties' concerns, needs and interests are considered and options for responding to them are pursued until settlement is reached or it becomes clear that settlement is impossible.

Initial conferences typically last sixty to ninety minutes, occasionally longer. The time depends on parties' interests in settlement and readiness to negotiate. In many cases, proposals are generated that require further review or development, so follow-up discussions may continue for days or weeks or longer as needed. If negotiations continue productively and all parties and the mediator agree, briefing may be postponed for a reasonable time until negotiations are completed. Follow-up telephone or in-person conferences may be scheduled in order to fully pursue all chances for negotiated settlements.

What Participants Can Expect
Generally, participants can expect the mediator to facilitate a thoughtful, respectful and, when appropriate, detailed exploration of the merits of the case. The extent of his or her preparation will vary with the amount of information available at the time of the conference. He or she usually will have read the district court's opinion if there is one and any background information provided by counsel. The mediator will inquire about each party's settlement interests if they are not immediately evident, often in private caucuses. Every effort will be made to generate offers and counter-offers until the parties settle or until all agree the case cannot be settled and understand why. While conferences are relatively informal in style, they are conducted with decorum appropriate to any official proceeding of the Court.

What The Court Expects
Mediators and parties can devote considerable time and effort to preparing for and participating in these mediation conferences, and attitudes and perceptions of participants frequently change in the process. This time and effort often is wasted and opportunities for settlement lost when the lawyer attending the conference is not the lawyer on whose judgment the client will rely when making major decisions about the case, or when a critically involved decision maker is not present. Any perceived tactical advantage in sending to the conference an attorney or client representative with limited knowledge or authority can be more than offset by the lost opportunity to influence or be influenced by this informed evaluation and settlement discussion. Lead counsel are asked to come prepared to articulate their view of the merits of the case as well as their clients' concerns and interests.

Mandatory Participation - Voluntary Settlement
Sixth Circuit Rule 33 requires all parties to the appeal to participate in scheduled conferences, at least through their counsel. However, no actions adverse to the interests of any party will be taken without the consent of all parties and no one will be required to say or do anything they perceive to be contrary to their interests.

Confidentiality
Sixth Circuit Rule 33 makes these conferences confidential and off the record. In addition, conference participants will be invited to agree to a complete prohibition on disclosure to any court of anything that anyone says in the conferences, or in any written or oral follow-up communications. If any party thinks some more specific or restrictive confidentiality agreement is needed, they may suggest so before the conference discussions begin. Confidentiality is deemed essential to the effectiveness of the mediation process and is treated seriously by the Mediation Office and the Court. All confidentiality restrictions apply equally to the mediator.