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5 Things to Know About Third Circuit Appellate Mediation

By Robyn Hagan Cain on November 18, 2011 3:04 PM

Here at FindLaw, we understand the pressures of being a legal professional - most of us are recovering lawyers - so we want to help by tossing you that preferred life preserver of the legal profession, the short list.

Today’s topic: Third Circuit appellate mediation.

What client doesn’t savor the thrill of appealing her case up the judicial food chain? It’s terribly exciting. It’s also expensive.

While going to court is fun, it’s costly and time-consuming. If your client is looking for a faster resolution, appellate mediation is an alternative to a full-blown appeal in the Third Circuit Court of Appeals. Here are five things you should tell you client when considering appellate mediation.

  1. Eligibility. All civil appeals and petitions for review or enforcement of agency action are eligible for mediation. The major exception is pro se litigation. The Chief Circuit Mediator selects cases based on the nature of the cases, the issues involved, and prior experience.
  2. Point of (Almost) No Return. If a case is selected for mediation, mediation is mandatory; in exceptional cases, (and for good cause), an attorney may ask the Chief Circuit Mediator to remove the case from the Mediation Program.
  3. Who Will Mediate? Cases are mediated by the Chief Circuit Mediator, the Circuit Mediator or a senior judge of the Third Circuit Court of Appeals or a District Court within the Circuit.
  4. How Does it Work? The mediation process may vary depending on the mediator. Generally, mediations commence with a general session with all parties, the lawyers, and the mediator. At the general session, there will be a discussion of the case, the issues on appeal and other matters important to settlement. Then the mediator will meet separately with each party and their counsel in separate "caucuses." In these caucuses, the mediator will try to facilitate negotiations and develop agreement. If a case settles during mediation, the mediator will confirm the settlement by letter and require the parties to file a Stipulation of Dismissal of the appeal within 30 days. If a case does not settle after mediation, a briefing order will be issued, and the appeal will proceed.
  5. Secretive Settlements? Appellate mediation is not automatically confidential, but the parties can agree to keep the settlement confidential.

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