The mediation may vary depending on the case and the mediator, but generally the discussion is informal and conversational. The primary purpose of the mediation is to explore the possibilities of settlement. Tangentially, it is also used to clarify issues and resolve procedural problems that may interfere with the smooth handling or disposition of the case. The mediation is ordinarily conducted early in the appeal, before briefing. Typically mediation sessions are conducted by telephone or video conference, although in some cases counsel and clients are required to attend in-person.

The mediator conducts the mediation in a series of joint and separate caucuses, talking with both sides together and with each side separately. While talking together, typically at the beginning, the mediator usually asks counsel about any procedural questions or problems that could be resolved by agreement. These might include questions about the appendix or the need for a specially tailored briefing schedule. At some point the mediator will shift the discussion to settlement and may explore the issues in the appeal with counsel and the parties in order to help them evaluate the risks on appeal. In many cases a candid examination of these risks is helpful in reaching consensus on the settlement value of the case. The discussions may also turn to matters outside the litigation that are nonetheless important to understanding the nature of the parties’ dispute and to uncover the obstacles to and the avenues toward resolution. The discussions may be with all parties present or with each side privately.

Counsel should set aside at least two hours for the initial mediation conference. In some cases, discussions may go no further. In other cases, follow-up discussions may continue for days or weeks, and sometimes longer. If a settlement is reached, the mediator often sends counsel a stipulation to dismiss or motion for voluntary dismissal. See link to Stipulation to Dismiss and Order of Dismissal. In instances where settlement is not reached but there is agreement about procedural matters (for example, modification of the briefing schedule, consolidation of appeals, abatement, etc.), the mediator will have an appropriate order issued to effect that agreement.