Continuing our prior posts on overlooked parts of the Sixth Circuit (see here, here, and here for example), this posts looks at the Office of the Circuit Mediators and the program’s practice and distinguishing features. The Sixth Circuit’s mediation office was founded in 1981 in an effort to decrease the court’s rapidly growing docket, and was only the second circuit to establish a formal mediation program.
The four mediation attorneys in the Sixth Circuit (and their staff) select about 1000 appeals each year for mediation. Under Local Rule 33, any civil case can be selected for mediation, although pro se and prisoner cases are usually omitted. Cases are usually chosen at random, but attorneys can request also mediation. (Interestingly, the mediators moved to random selection when they found that cases that appeared to be amenable to mediation were not actually more likely to settle than any other case.) The Circuit judges also occasionally recommend a case for mediation, sometimes even after oral argument.
The Sixth Circuit’s mediation program has an impressive success rate: the program settles about 40% of appeals that participate in mediation. In 2011, the court resolved little more than 700 civil appeals on the merits. The 400 cases resolved by the circuit mediators – resolutions presumably on the merits and agreed to by the parties – represent about a third of all of the civil cases resolved on the merits. Moreover, most of those resolutions were agreed to over the telephone. Unlike most circuits, over 90% of the Sixth Circuit’s mediations are held by telephone – which is certainly appreciated by attorneys and parties. Most other circuits use telephone mediations just 20-50% of the time.
While mediation may seem pointless in many cases, practitioners would be wise to fully participate when their cases are chosen for mediation – and might want to consider requesting mediation even in difficult cases.