Appellate Mediation Programs in U.S. Courts

Appellate mediation programs are structured alternative dispute resolution processes administered by U.S. courts of appeals to resolve cases after a notice of appeal has been filed but before the appellate panel renders a decision. These programs operate across federal circuit courts and state appellate tribunals, diverting a measurable portion of docketed appeals toward negotiated settlement. Understanding how these programs are structured, what cases they serve, and where their authority begins and ends is essential for anyone navigating the appeals process overview or researching appellate procedure.

Definition and scope

Appellate mediation is a court-annexed process in which a neutral mediator — typically a trained attorney or retired judge designated by the court — facilitates settlement discussions between parties who have already filed an appeal. The program is distinct from trial-level mediation because the dispute has entered the appellate jurisdiction phase: a lower court ruling exists, briefing schedules are active or pending, and the appellate record is being assembled.

The scope of these programs spans civil appeals in the majority of federal circuit courts. The United States Court of Appeals for the Ninth Circuit operates the Appellate Mediation Program through its Circuit Mediators office, handling thousands of referred cases annually (Ninth Circuit Court of Appeals, Mediation Program). The Second Circuit operates the Civil Appeals Management Plan (CAMP), one of the oldest appellate ADR programs in the federal system, established under Local Rule 33.1 (Second Circuit CAMP). At the state level, California's Court of Appeal and New York's Appellate Division maintain parallel programs with jurisdiction-specific eligibility rules.

Appellate mediation programs are authorized under Federal Rule of Appellate Procedure 33, which expressly permits courts to direct parties to confer on simplifying issues, settlement, and other procedural matters (FRAP Rule 33, via Cornell LII). Individual circuits implement FRAP 33 through local rules, which determine which case categories are eligible, whether participation is mandatory or voluntary, and how mediators are assigned.

How it works

The process moves through a defined sequence of phases from referral to resolution or return to the appellate docket.

1. Referral: After a notice of appeal is docketed, court staff screen civil cases using eligibility criteria established in the circuit's local rules. Criminal appeals, habeas corpus petitions, and pro se filings are typically excluded from automatic referral.
2. Assignment: An appellate mediator — a court employee or contracted neutral — is assigned. In the Ninth Circuit, Circuit Mediators are full-time court employees with specialized ADR training.
3. Pre-mediation conference: The mediator contacts counsel (or parties in pro se appeals) to assess the dispute, identify settlement barriers, and schedule the mediation session.
4. Mediation session: Sessions may be conducted in person, by telephone, or by videoconference. The mediator does not issue rulings and has no adjudicative authority. Confidentiality protections apply under circuit rules and, in federal courts, under 28 U.S.C. § 652(d), which prohibits disclosure of ADR communications (28 U.S.C. § 652, via Cornell LII).
5. Outcome: If the parties reach a settlement, they file a stipulation of dismissal under Federal Rule of Appellate Procedure 42(b), and the appeal is terminated. If no agreement is reached, the case returns to the normal briefing schedule with no penalty or adverse inference.

The mediator's role is facilitative, not evaluative, in most federal circuit programs — a contrast with some state appellate ADR structures where mediators may offer written assessments of case strength.

Common scenarios

Appellate mediation programs see the highest referral and settlement rates in four categories of civil disputes:

• Commercial and contract disputes: Cases involving breach of contract, partnership dissolution, or business tort claims frequently settle because both parties can model the cost of continued litigation against appellate fees and costs and the uncertainty of reversal or remand.
• Employment discrimination appeals: Title VII, ADA, and ADEA cases routed through circuits like the Sixth and Eleventh frequently enter mediation after district court judgment, given the range of possible damages outcomes on appeal.
• Insurance coverage disputes: The binary nature of coverage determinations and the availability of structured payment terms makes these cases amenable to negotiated resolution at the appellate stage.
• Family law financial matters: In state appellate courts, property division and support obligation disputes — where the underlying facts are largely settled — lend themselves to mediated compromise without requiring full standards of review analysis by a panel.

Cases involving constitutional questions, criminal convictions, or administrative appeals with significant public interest components are rarely referred, and most programs explicitly exclude them from mandatory participation.

Decision boundaries

Appellate mediators hold no power to compel settlement, modify a lower court's judgment, issue interim relief, or grant a stay pending appeal. The decision to settle remains entirely with the parties. Courts enforce confidentiality strictly: under the Alternative Dispute Resolution Act of 1998 (Pub. L. 105-315), federal courts are required to adopt ADR local rules and protect the confidentiality of ADR proceedings, but the statute does not mandate settlement or impose outcome standards.

A key boundary distinguishes appellate mediation from the appellate merits process: participation in mediation does not toll briefing deadlines unless the court issues a specific administrative hold. Parties who enter mediation while appellate brief requirements deadlines run face procedural risk unless they obtain an explicit extension order.

Mandatory referral programs — such as CAMP in the Second Circuit — require attendance at an initial conference but cannot compel a party to make or accept any offer. Voluntary programs, common in state appellate courts, allow either party to opt out at the referral stage.

References

• Federal Rule of Appellate Procedure 33 — Cornell LII
• 28 U.S.C. § 652 — Alternative Dispute Resolution Act provisions, Cornell LII
• Alternative Dispute Resolution Act of 1998, Pub. L. 105-315 — GovInfo
• Ninth Circuit Court of Appeals Mediation Program
• Second Circuit Civil Appeals Management Plan (CAMP)
• Federal Rules of Appellate Procedure — full text, Cornell LII