B. What Makes A Case A Good Candidate for Appellate Mediation?
In determining whether a particular case is appropriate for mediation, counsel, the parties, and the mediator will consider many factors, including the following:
the parties' interest in participation;
the certainty, or the possibility, that a Ninth Circuit decision will not end the dispute;
a desire to make or avoid legal precedent;
the existence of other appeals that raise the same legal issue;
the desire to preserve a business or personal relationship;
the existence of non-monetary issues;
the possibility that a creative resolution might provide better relief than a court could fashion;
a history of strong feelings that may have prevented effective negotiations;
the possibility that one or all parties could benefit from a fresh look at the dispute;
a desire to open and improve communications between or among the parties;
the possibility that settlement efforts include more than the issue on appeal (e.g. interlocutory appeals or cases in which portions have been remanded to state court).
The program is not necessarily limited to the case that is on appeal in the Ninth Circuit as long as all parties are in agreement; the discussions may include additional parties and related cases in other courts, as well as issues that are not part of any litigation.