Last week, I had the opportunity to sit down with Paul Calico, the Chief Circuit Mediator for the Sixth Circuit. Mr. Calico came to the Sixth Circuit in 2010, replacing Bob Rack who had started the Office of the Circuit Mediators. Mr. Calico’s background includes practicing law for over 30 years, with a heavy emphasis on mediation and dispute resolution.
Q: How is the Sixth Circuit’s Mediation Office organized?
A: We have four mediators here at the Sixth Circuit, including myself.
Q: What is the overall success rate at circuit mediation?
A: It varies from year to year, but generally we find the success rate averaging between 33 and 40 percent.
Q: That seems pretty high to me for appellate mediation.
A: That’s true; it’s often more difficult to settle cases on appeal because you have a judgment and many of the costs are sunk into the case already. However, the high settlement rate is a tribute to the lawyers who often look at the broader case and are effective in working with their clients to help drive a resolution.
Q: Are most of the cases mediated telephonically or in person?
A: The vast majority of mediations take place by telephone. We have in-person mediations if both counsel are located within 50 miles of Cincinnati or if both parties agree. And sometimes a telephonic mediation can lead to an in-person session.
Q: Is it more difficult to settle a case by telephone?
A: We generally find that the ratio of successful settlements is about the same for telephonic and in-person mediations. But the mediators here spend a fair amount of time in preparation for the mediation, including reviewing relevant decisions by the district court as well as the confidential mediation statements. We sometimes reach out to the attorneys in advance of the mediation to try to ascertain if there are other issues that might impact or facilitate settlement. This advance leg work generally gives the parties confidence that the mediator understands the case and can be a helpful facilitator in driving a settlement.
Q: How are cases selected for mediation?
A: Almost all fully counseled civil appeals are scheduled for mediation. In the event that a case is not selected for mediation, counsel can always request mediation confidentially.
Q: When do you generally try to schedule mediations?
A: We generally try to schedule the mediations in advance of the briefing so that the parties don’t have to spend the time and resources on briefing the case before they fully exhaust settlement. The Circuit Mediators’ Office also has the ability to grant extensions on briefing in cases that are being actively mediated. In some circumstances, the panel of judges who are hearing the case will make a referral to mediation following oral argument.
Q: Are the judges who ultimately hear the case if it is not settled aware of the fact that the case has been through the mediation process?
A: We maintain strict confidentiality regarding all aspects of our mediations; the docket merely reflects whether a case has been referred to mediation. The mediation process is designed to be confidential in order to ensure candid discussions, which are a very important aspect of our efforts in resolving cases in the Sixth Circuit.