L.A.R. 33.5: Proceedings After Selection for the Program

(a) Submission of Position Papers and Documents. Within 15 days of the case’s selection for mediation by the Chief Circuit Mediator, each counsel must prepare and submit to the mediator a confidential position paper of no more than 10 pages, stating counsel’s views on the key facts and legal issues in the case, as well as on key factors relating to settlement. The position paper will include a statement of motions filed in the court of appeals and their status. Copies of position papers submitted by the parties directly to the mediator should not be served upon opposing counsel. Documents prepared for mediation sessions are not to be filed with the Clerk’s Office and are not to be of record in the case.

(b) Mediation Sessions. The mediator will notify the parties of the time, date, and place of the mediation session and whether it will be conducted in person or telephonically. Unless the mediator directs otherwise, mediation sessions must be attended by the senior lawyer for each party responsible for the appeal and by the person or persons with actual authority to negotiate a settlement of the case. If settlement is not reached at the initial mediation session, but the mediator believes further mediation sessions or discussions would be productive, the mediator may conduct additional mediation sessions in person or telephonically.

(c) Confidentiality of Mediation Proceedings. The mediator will not disclose to anyone statements made or information developed during the mediation process. The attorneys and other persons attending the mediation are likewise prohibited from disclosing statements made or information developed during the mediation process to anyone other than clients, principals or co-counsel, and then, only upon receiving due assurances that the recipients will honor the confidentiality of the information. Similarly, the parties are prohibited from using any information obtained as a result of the mediation process as a basis for any motion or argument to any court. The mediation proceedings are considered compromise negotiations under Rule 408 of the Federal Rules of Evidence. Notwithstanding the foregoing, the bare fact that a settlement has been reached as a result of mediation will not be considered confidential.

(d) Settlement. No party will be bound by statements or actions at a mediation session unless a settlement is reached. If a settlement is reached, the agreement must be reduced to writing and will be binding upon all parties to the agreement, and counsel must file a stipulation of dismissal of the appeal pursuant to Rule 42(b), FRAP Such a stipulation must be filed within 30 days after settlement is reached unless an extension thereof is granted by the Chief Circuit Mediator.