IP Mediation Laws and Rules

Copyright Act of 1976

Complete version of the U.S. Copyright Law, December 2011 [PDF format = 2 Mb]
Copyright Act By Chapter 

  1. Chapter 1: Subject Matter and Scope of Copyright
  2. Chapter 2: Copyright Ownership and Transfer
  3. Chapter 3: Duration of Copyright
  4. Chapter 4: Copyright Notice, Deposit, and Registration
  5. Chapter 5: Copyright Infringement and Remedies
  6. Chapter 6: Importation and Exportation
  7. Chapter 7: Copyright Office
  8. Chapter 8: Proceedings by Copyright Royalty Judges
  9. Chapter 9: Protection of Semiconductor Chip Products
  10. Chapter 10: Digital Audio Recording Devices and Media
  11. Chapter 11: Sound Recordings and Music Videos
  12. Chapter 12: Copyright Protection and Management Systems
  13. Chapter 13: Protection of Original Designs
  14. Appendix A: The Copyright Act of 1976
  15. Appendix B: The Digital Millennium Copyright Act of 1998
  16. Appendix C: The Copyright Royalty and Distribution Reform Act of 2004
  17. Appendix D: The Satellite Home Viewer Extension and Reauthorization Act of 2004
  18. Appendix E: The Intellectual Property Protection and Courts Amendments Act of 2004
  19. Appendix F: The Prioritizing Resources and Organization for Intellectual Property Act of 2008
  20. Appendix G: The Satellite Television Extension and Localism Act of 2010
  21. Appendix H: Title 18 — Crimes and Criminal Procedure, U. S. Code
  22. Appendix I: Title 28 — Judiciary and Judicial Procedure, U. S. Code
  23. Appendix J: Title 44 — Public Printing and Documents, U. S. Code
  24. Appendix K: The Berne Convention Implementation Act of 1988
  25. Appendix L: The Uruguay Round Agreements Act of 1994
  26. Appendix M: GATT⁄Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement, PartII
  27. Appendix N: Definition of “Berne Convention Work

Northern District of Florida Mediation Rules

RULE 16.3    Mediation

(A) Definition. Mediation is an opportunity for the parties to negotiate their own settlement. Mediation is a supervised settlement conference presided over by a neutral mediator to promote conciliation, compromise and the ultimate settlement of a civil action. The mediator may be a mediator certified in accordance with these rules or any person mutually agreed upon by all parties. The mediator’s role in the settlement of cases is to assist the parties in the identification of interests, suggest alternatives, analyze issues, question perceptions, conduct private caucuses, stimulate negotiations between opposing sides, and keep order. The mediation process does not allow for testimony of witnesses. The mediator does not review or rule upon questions of fact or law, or render any final decision in the case. Absent a settlement or consent of the parties, the mediator will only report to the presiding  judge whether the case settled, was adjourned or continued for further mediation, or was terminated because settlement was not possible and the mediator declared an impasse.

(B) Purpose. Mediation is intended as an alternative method to resolve civil cases, thereby saving time and cost without sacrificing the quality of justice to be rendered or the right of the litigants to a full trial in the event of an impasse following mediation.

(C) Qualifications of Mediators. Any person who is certified and remains in good standing as a circuit court mediator under the rules adopted by the Supreme Court of Florida is qualified to serve as a mediator in this district. By mutual agreement and with court approval, any other person may be a mediator in a specific case.

(D) Standards of Professional Conduct for Mediators. All mediators, whether certified or not, who mediate in cases pending in this district shall be governed by standards of professional conduct and ethical rules adopted by the Supreme Court of Florida for circuit court mediators.

(E) Disqualification of a Mediator. After reasonable notice and hearing, and for good cause, the presiding judge shall have discretion and authority to disqualify any mediator from serving as mediator in a particular case. Good cause may include violation of the standards of professional conduct for mediators. Additionally, any person selected as a mediator may be disqualified for bias or prejudice as provided in 28 U.S.C. §144, and shall be disqualified in any case in which such action would be required by a justice, district judge, or magistrate judge governed by 28 U.S.C. § 455.

(F) Compensation of Mediators. Absent agreement by all parties to the contrary, mediators shall be compensated and reimbursed for expenses at the rate set by the court. Further, absent agreement of the parties to the contrary or order of the court for good cause shown, the cost of the mediator’s services shall be paid equally by the parties to the mediation conference.

(G) Limitations on Acceptance of Compensation or Other Reimbursement. Except as provided by these rules, no mediator shall charge or accept in connection with the mediation of any particular case, any compensation, fee, or any other thing of value from any other source without prior written approval of the court.

(H) Mediators as Counsel in Other Cases. Any member of the bar who is certified or selected as a mediator pursuant to these rules shall not, for that reason alone, be disqualified from appearing and acting as counsel in any other case pending in this district.

(I) Referral to Mediation. All litigants in civil cases not exempt under N.D. Fla. Loc. R. 26.1 shall consider the use of mediation as an alternative dispute resolution process at an appropriate stage in the litigation.  Any pending civil case may be referred to mediation by the presiding judicial officer at such time as the judicial officer may determine to be in the interests of justice. The parties may request the court to submit any pending civil case to mediation at any time.

Middle District of Florida Mediation Rules

RULE 9.01     GENERAL PROVISIONS

(a)       Definitions: Mediation is a supervised settlement conference presided over by a qualified, certified and neutral mediator to promote conciliation, compromise and the ultimate settlement of a civil action.

The mediator is an attorney, certified by the chief judge in accordance with these rules, who possesses the unique skills required to facilitate the mediation process including the ability to suggest alternatives, analyze issues, question perceptions, use logic, conduct private caucuses, stimulate negotiations between opposing sides and keep order.

The mediation process does not allow for testimony of witnesses. The mediator does not review or rule upon questions of fact or law, or render any final decision in the case.  Absent a settlement, the mediator will report only to the presiding judge as to whether the case settled, was adjourned for further mediation (by agreement of the parties), or that the mediator declared an impasse.

(b)       Purpose: It is the purpose of the Court, through adoption and implementation of this rule, to provide an alternative mechanism for the resolution of civil disputes (a Court annexed, mandatory mediation procedure) leading to disposition before trial of many civil cases with resultant savings in time and costs to the litigants and to the Court, but without sacrificing the quality of justice to be rendered or the right of the litigants to a full trial in the event of an impasse following mediation.

RULE 9.02     CERTIFICATION; QUALIFICATION AND COMPENSATION OF MEDIATORS

(a)       Certification of Mediators:  The chief judge shall certify those persons who are eligible and qualified to serve as mediators under this rule, in such numbers as the chief judge shall deem appropriate.  Thereafter, the chief judge shall have complete discretion and authority to withdraw the certification of any mediator at any time.

(b)       Lists of Certified Mediators:  Lists of certified mediators shall be maintained in each division of the Court, and shall be made available to counsel and the public upon request.

(c)       Qualifications of Mediators: An individual may be certified to serve as a mediator if:

(1)       He or she is a former state court judge who presided in a court of general jurisdiction and was also a member of the bar in the state in which he presided; or

(2)       He or she is a retired federal judicial officer; or

(3)       He or she has been a member of a state bar or the bar of the District of Columbia for at least ten (10) years and is currently admitted to the Bar of this Court.

In addition, an applicant for certification must have completed a minimum of 40 hours in the Florida Circuit Court Mediation Training Course certified by the Florida Supreme Court and be found competent by the chief judge to perform mediation duties.

At the direction of the chief judge, an advisory committee may be constituted to assist in formulating policy and additional standards relating to the qualification of mediators and to assist in reviewing applications of prospective mediators.

(d)       Oath Required: Every mediator shall take the oath or affirmation prescribed by 28 U.S.C. Section 453 upon qualifying as a mediator.

(e)       Disqualification of a Mediator:   Any person selected as a mediator may be disqualified for bias or prejudice as provided in 28 U.S.C. Section 144, and shall be disqualified in any case in which such action would be required by a justice, judge, or magistrate judge governed by 28 U.S.C. Section 455.

(f)        Compensation of Mediators: Absent agreement of the parties and the mediator, mediators shall be compensated at a reasonable hourly rate provided by order of the Court after consideration of the amount in controversy, the nature of the dispute, the resources of the parties, the prevailing market rate for mediators in the applicable market, the skill and experience of the mediator, and other pertinent factors.   Unless altered by order of the Court, the cost of the mediator’s services shall be borne equally by the parties to the mediation conference.

(g)       Limitations on Acceptance of Compensation or Other Reimbursement: Except as provided by these rules, no mediator shall charge or accept in connection with the mediation of any particular case, any fee or thing of value from any other source whatever, absent written approval of the Court given in advance of the receipt of any such payment or thing of value.

(h)       Mediators as Counsel in Other Cases:  Any member of the bar who is certified and designated as a mediator pursuant to these rules shall not for that reason be disqualified from appearing and acting as counsel in any other case pending before the Court.

RULE 9.03     TYPES OF CASES SUBJECT TO MEDIATION; WITHDRAWAL

(a)       Court Referral:  Upon order by the presiding judge, any civil action or claim may be referred by the Court to a mediation conference, providing the action or claim has not already been arbitrated in accordance with Chapter Eight of the Rules of the Middle District of Florida, except:

(1)       Appeals from rulings of administrative agencies. (2)       Habeas corpus and/or extraordinary writs.

(3)       Forfeitures of seized property. (4)       Bankruptcy appeals.

(b)       Stipulation of Counsel:   Any action or claim may be referred to a mediation conference upon the stipulation of counsel of record. Such application shall also certify agreement to pay the mediator’s fee in accordance with these rules.

(c)       Withdrawal from Mediation:   Any civil action or claim referred to mediation pursuant to this rule may be exempt or withdrawn from mediation by the presiding judge at any time, before or after reference, upon a determination for any reason that the case is not suitable for mediation.

RULE 9.04     PROCEDURES TO REFER A CASE OR CLAIM TO MEDIATION

(a)       Order of Referral:  In every case in which the Court determines that referral to mediation is appropriate pursuant to Rule 9.03(a) or (b), the Court shall enter an order of referral which shall:

(1)       Designate the mediator if one has previously been selected by the parties or, if not, allow fourteen (14) days for the parties to make such selection and notify the Court.

(2)       Define the window of time in which the mediation conference may be conducted, preferably not sooner than 45 days and not later than fourteen (14) days before the scheduled trial date.

(3)       Designate an attorney as lead counsel, who shall be responsible for coordinating two alternate mediation conference dates agreeable to the mediator and all counsel of record.

RULE 9.05     SCHEDULING THE MEDIATION CONFERENCE

(a)       Report of Lead Counsel: Not later than twenty-one (21) days after the entry of the order of referral pursuant to Rule 9.04(a), lead counsel shall file a report indicating the agreeable alternate mediation conference dates.

(b)       Scheduling Mediation Conference Date: Upon receipt of the report of lead counsel, or upon failure of lead counsel to either file the report or secure mutually agreeable mediation conference dates, the Court shall fix the date for the mediation conference by order. Unless otherwise provided by order, the mediation conference shall be conducted in the United States Courthouse.

(c)       Party Attendance Required: Unless otherwise excused by the presiding judge in writing, all  parties, corporate representatives, and  any other required claims professionals (insurance adjusters, etc.), shall be present at the Mediation Conference with full authority to negotiate a settlement. Failure to comply with the attendance or settlement authority requirements may subject a party to sanctions by the Court.

(d)       Continuance of Mediation Conference Date:   Subject to the availability of mediation conference space in the Courthouse, the mediator may, with the consent of all parties and counsel, reschedule the mediation conference to a date certain not later than fourteen (14) days prior to the scheduled trial date. Any continuance beyond that time must be approved by the presiding judge.

(e)       Mediation Absent Party Attendance:  Subject to approval of the mediator, the mediation conference may proceed in the absence of a party who, after due notice, fails to be present. Upon the recommendation of the mediator, sanctions may be imposed by the Court on any party who, absent good cause shown, failed to attend the mediation conference.

RULE 9.06     MEDIATION REPORT; NOTICE OF SETTLEMENT; JUDGMENT

(a)       Mediation Report: Within seven (7) days following the conclusion of the mediation conference, the mediator shall file a Mediation Report indicating whether all required parties were present and had authority to settle the case.  The report shall also indicate whether the case settled, was continued with the consent of the parties, or whether the mediator was forced to declare an impasse.

(b)       Notice of Settlement: In the event that the parties reach an agreement to settle the case or claim, lead counsel shall promptly notify the Court of the settlement in accordance with Local Rule 3.08, and the Clerk shall enter judgment accordingly.

RULE 9.07     TRIAL DE NOVO

(a)       Trial De Novo Upon Impasse:  If the mediation conference ends in an impasse, the case will be tried as originally scheduled.

(b)      Restrictions on the Use of Information Derived During the Mediation Conference: All proceedings of the mediation conference, including statements made by any party, attorney, or other participant, are privileged in all respects. The proceedings may not be reported, recorded, placed into evidence, made known to the trial court or jury, or construed for any purpose as an admission against interest. A party is not bound by anything said or done at the conference, unless a settlement is reached.

Middle District of Florida Arbitration Rules

RULE 8.01     ARBITRATION

(a)       It is the purpose of the Court, through adoption and implementation of this rule, to provide an alternative mechanism for the resolution of civil disputes in accord with 28 U.S.C. Sections 651-658.

(b)       The Chief Judge shall certify those persons who are eligible and qualified to serve as arbitrators under this rule. An individual may be certified to serve as an arbitrator under this rule if admitted to The Florida Bar for at least five (5) years, admitted to practice before this Court, and determined by the Chief Judge competent to perform the duties of an arbitrator.

An advisory committee or committees comprised of members of the bar in each Division of the Court, respectively, may be constituted to assist the Chief Judge in screening applicants and aiding in the formulation and application of standards for selecting arbitrators.

(c)       Each individual certified as an arbitrator shall take the oath or affirmation prescribed by 28 U.S.C. Section 453 before serving as an arbitrator. Depending upon the availability of funds from the Administrative Office of the United States Courts, or other appropriate agency, arbitrators may be compensated for their services in such amounts and in such manner as the Chief Judge shall specify from time to time.   No arbitrator shall charge or accept for services any fee or reimbursement from any other source. Any member of the bar who is certified and designated as an arbitrator pursuant to these rules shall not for that reason be disqualified from appearing and acting as counsel in any other case pending before the Court.

RULE 8.02     CASES FOR ARBITRATION

(a)       Any civil action may be referred to arbitration in accordance with this rule if the parties consent in writing to arbitration, except that referral to arbitration may not occur if:

(1)       the action is based on an alleged violation of a right secured by the Constitution of the United States:

(2)       jurisdiction is based in whole or in part on 28 U.S.C. Section 1343; or

(3)       the relief sought consists of money damages in an amount greater than $150,000.

(b)       No party or attorney can be prejudiced for refusing to participate in arbitration by consent.

RULE 8.03     REFERRAL TO ARBITRATION

Within twenty-one (21) days after referral to arbitration, the Court shall select three (3) certified arbitrators to conduct the arbitration proceedings.   Not more than one member or associate of a firm or association of attorneys shall be appointed to the same panel of arbitrators. Any person selected as an arbitrator may be disqualified for bias or prejudice as provided in 28

U.S.C. Section 144, and shall disqualify himself in any action in which he would be required to do so if he were a justice, judge, or magistrate judge governed by 28 U.S.C. Section 455.

RULE 8.04     ARBITRATION HEARING

(a)       Immediately upon selection and designation of the arbitrators pursuant to Rule 8.03, the Clerk shall communicate with the parties and the arbitrators in an effort to ascertain a mutually convenient date for a hearing, and shall then schedule and give notice of the date and time of the arbitration hearing which may be held in space provided in the United States Courthouse.  The hearing shall be scheduled within ninety (90) days from the date of the selection and designation of the arbitrators on at least twenty-one (21) days notice to the parties.  Any continuance of the hearing beyond that ninety (90) day period may be allowed only by order of the Court for good cause shown.

(b)       At least fourteen (14) days prior to the arbitration hearing each party shall furnish to every other party a list of witnesses, if any, and copies (or photographs) of all exhibits to be offered at the hearing. The arbitrators may refuse to consider any witness or exhibit which has not been so disclosed.

(c)       Individual parties or authorized representatives of corporate parties shall attend the arbitration hearing unless excused in advance by the arbitrators for good cause shown.  The hearing shall be conducted informally; the Federal Rules of Evidence shall be a guide, but shall not be binding.  It is contemplated by the Court that the presentation of testimony shall be kept to a minimum, and that cases shall be presented to the arbitrators primarily through the statements and arguments of counsel.

(d)       Any party may have a recording and transcript made of the arbitration hearing at the party’s expense.

RULE 8.05     ARBITRATION AWARD AND JUDGMENT

(a)       The award of the arbitrators shall be filed with the Clerk within fourteen (14) days following the hearing, and the Clerk shall give immediate notice to the parties.  The award shall state the result reached by the arbitrators without necessity of factual findings or legal conclusions. A majority determination shall control the award.

(b)       At the end of thirty (30) days after the filing of the arbitrator’s award the Clerk shall enter judgment on the award if no timely demand for trial de novo has been made. If the parties have previously stipulated in writing that the award shall be final and binding, the Clerk shall enter judgment on the award when filed.

(c)       Pursuant to 28 U.S.C. Section 657(b), the contents of any arbitration award shall be sealed and shall remain unknown to any judge assigned to the case —

(1)       Except as necessary for the Court to determine whether to assess costs or attorney fees under 28 U.S.C. Section 655 or

(2)       Until the District Court has entered final judgment in the action or the action has been otherwise terminated, at which time the award shall be unsealed.

RULE 8.06     TRIAL DE NOVO

(a)       Within thirty (30) days after the filing of the arbitration award with the Clerk, any party may demand a trial de novo in the District Court. Written notification of such a demand shall be filed with the Clerk and a copy shall be served by the moving party upon all other parties.

(b)       Upon a demand for a trial de novo the action shall be placed on the calendar of the Court and treated for all purposes as if it had not been referred to arbitration, and any right of trial by jury shall be preserved inviolate.

(c)       At the trial de novo the Court shall not admit evidence that there has been an arbitration proceeding, the nature or amount of the award, or any other matter concerning the conduct of the arbitration proceeding, except that testimony given at an arbitration hearing may be used for any purpose otherwise permitted by the Federal Rules of Evidence, or the Federal Rules of Civil Procedure.

(d)       No penalty for demanding a trial de novo shall be assessed by the Court.

Southern District of Florida RULE 16.2 COURT ANNEXED MEDIATION

(a) General Provisions.

(1)  Definitions.    Mediation  is  a supervised  settlement  conference presided  over  by a

qualified, certified, and neutral mediator, or anyone else whom the parties agree upon to serve as a mediator, to promote conciliation, compromise and the ultimate settlement of a civil action.

A certified mediator is an attorney, certified by the Chief Judge in accordance with these Local Rules, who possesses the unique skills required to facilitate the mediation process including the ability to suggest alternatives, analyze issues, question perceptions, use logic, conduct private caucuses, stimulate negotiations between opposing sides, and keep order.

The mediation process does not allow for testimony of witnesses.  The mediator does not review or rule upon questions of fact or law, or render any final decision in the case. Absent a settlement, the mediator will report to the presiding Judge only as to whether the case settled (in full or in part) or was adjourned for further mediation, whether the mediator declared an impasse, and pursuant to Local Rule 16.2(e), whether any party failed to attend the mediation.

(2) Purpose.  It is the purpose of the Court, through adoption and implementation of this Local Rule, to provide an alternative mechanism for the resolution of civil disputes leading to disposition before trial of many civil cases with resultant savings in time and costs to litigants and to the Court, but without sacrificing the quality of justice to be rendered or the right  of  the  litigants  to  a  full  trial  in  the  event  of  an  impasse  following  mediation. Mediation also enables litigants to take control of their dispute and encourages amicable resolution of disputes.

(b) Certification; Qualification of Certified Mediators; Compensation of Mediators.

(1) Certification of Mediators. The Chief Judge shall certify those persons who are eligible and qualified to serve as mediators under this Local Rule, in such numbers as the Chief Judge shall deem appropriate.  Thereafter, the Chief Judge shall have complete discretion and authority to withdraw the certification of any mediator at any time.

(2) Lists of Certified Mediators.   Lists of certified mediators shall be maintained in the offices of the Clerk of the Court and shall be made available to counsel and the public upon request.

(3) Qualifications of Certified Mediators.   An individual may be certified to serve as a mediator in this District provided that the individual shall:

(A) be an attorney who has been admitted for at least ten (10) consecutive years to one or more State Bars or the Bar of the District of Columbia; and

(B) currently be a member in good standing of The Florida Bar and the Bar of this Court; and

(C) have substantial experience either as a lawyer or mediator in matters brought in any United States District Court or Bankruptcy Court; and

(D) have been certified and remain in good standing as a circuit court mediator under the rules adopted by the Supreme Court of Florida; and

(E) have substantial experience as a mediator.

The advisory committee may recommend for certification an attorney to serve as a mediator in this District if it determines that, for exceptional circumstances, the applicant should be certified who is not otherwise eligible for certification under this section.

Any individual who seeks certification as a mediator shall agree to accept at least two (2) mediation assignments per year in cases where at least one (1) party lacks the ability to compensate the mediator, in which case the mediator’s fees shall be reduced accordingly or the mediator shall serve pro bono (if no litigant is able to contribute compensation).

The  Chief  Judge  shall  constitute  an  advisory  committee  from  lawyers  who represent those categories of civil litigants who may utilize the mediation program and lay persons to assist in formulating policy and additional standards relating to the qualification of mediators and the operation of the mediation program and to review applications of prospective mediators and to recommend certification to the Chief Judge as appropriate.

(4) Standards of Professional Conduct for Mediators.  All individuals who mediate cases pending in this District shall be governed by the Standards of Professional Conduct in the Florida  Rules  for  Certified  and  Court–Appointed  Mediators  adopted  by  the  Florida Supreme Court (the “Florida Rules”) and shall be subject to discipline and the procedures therefor set forth in the Florida Rules.   Every mediator who mediates a case in this District consents to the jurisdiction of the Florida Dispute Resolution Center and the committees and panels authorized thereby for determining the merits of any complaint made against any mediator in this District.

(5) Oath Required.  Every certified mediator shall take the oath or affirmation prescribed by 28 U.S.C. § 453 upon qualifying as a mediator.

(6) Disqualification of a Mediator.  Any person selected as a mediator may be disqualified for bias or prejudice as provided in 28 U.S. C. § 144, and shall be disqualified in any case in which such action would be required of a justice, judge, or Magistrate Judge governed by 28 U.S.C. § 455.

(7) Compensation of Mediators.  Mediators shall be compensated (a) at the rate provided by standing order of the Court, as amended from time to time by the Chief Judge, if the mediator is appointed by the Court without input or at the request of the parties;  or (b) at such rate as may be agreed to in writing by the parties and the mediator, if the mediator is selected by the parties.   Absent agreement of the parties to the contrary, the cost of the mediator’s services shall be borne equally by the parties to the mediation conference.  A mediator shall not negotiate or mediate the waiver or shifting of responsibility for payment of mediation fees from one party to the other.  All mediation fees payable under this rule shall be due within forty-five (45) days of invoice and shall be enforceable by the Court upon motion.

(c) Types of Cases Subject to Mediation.  Unless expressly ordered by the Court, the following types of cases shall not be subject to mediation pursuant to this rule:

(1) Habeas corpus cases;

(2) Motion to vacate sentence under 28 U.S.C. § 2255;

(3) Social Security cases;

(4) Civil forfeiture matters;

(5) IRS summons enforcement actions;

(6) Land condemnation cases;

(7) Default proceedings;

(8) Student loan cases;

(9) Naturalization proceedings filed as civil actions;

(10) Statutory interpleader actions;

(11) Truth-in-Lending Act cases not brought as class actions;

(12) Letters rogatory; and

(13) Registration of foreign judgments.

(d) Procedures to Refer a Case or Claim to Mediation.

(1) Order of Referral.  In every civil case excepting those listed in Local Rule 16.2(c), the Court shall enter an order of referral similar in form to the proposed order attached hereto which shall:

(A) Direct mediation be conducted not later than sixty (60) days before the scheduled trial date which shall be established no later than the date of the issuance of the order of referral.

(B) Direct the parties, within fourteen (14) days of the date of the order of referral, to agree upon a mediator.  The parties are encouraged to utilize the list of certified mediators established in connection with Local Rule 16.2(b) but may by mutual agreement select any individual as mediator.   The parties shall file a “Notice of Selection of Mediator” within that period of time.  If the parties are unable to agree upon a mediator, plaintiff’s counsel, or plaintiff if self-represented, shall file a “Request For Clerk To Appoint Mediator,” and the Clerk will designate a mediator from the list of certified mediators on a blind, random basis.

(C) Direct that, at least fourteen (14) days prior to the mediation date, each party give the mediator a confidential written summary of the case identifying issues to be resolved.

(2) Coordination of Mediation Conference.  Plaintiff’s counsel (or another attorney agreed upon by all counsel of record) shall be responsible for coordinating the mediation conference date and location agreeable to the mediator and all counsel of record.

(3) Stipulation of Counsel.   Any action or claim may be referred to mediation upon stipulation of the parties.

(4) Withdrawal From Mediation.  Any civil action or claim referred to mediation pursuant to this rule may be exempt or withdrawn from mediation by the presiding Judge at any time, before or after reference, upon application of a party and/or determination for any reason that the case is not suitable for mediation.

(e) Party Attendance Required.  Unless excused in writing by the presiding Judge, all parties and required claims professionals (e.g., insurance adjusters) shall be physically present at the mediation conference (i.e., in person if the party is a natural person or by personal attendance of a corporate representative if the party is an entity) with full authority to negotiate a settlement.  If a party to a mediation is a public entity required to conduct its business pursuant to Florida Statutes Chapter 286, and is a defendant or counterclaim defendant in the litigation, that party shall be deemed to appear at a mediation conference by the physical presence of a representative with full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision-making body of the entity.  The representative shall not be solely the public entity’s counsel (or firm) of record, however, the representative may be the public entity’s in-house counsel where another counsel of record for the public entity is also present.   In cases where the in-house counsel is counsel of record, that counsel and another representative may act as duly authorized representatives of the public entity.   In cases where the parties include a public entity and/or individuals who were or are employed by a public entity or elected officials of a public entity, such individual parties do not need to attend the mediation conference if all claims asserted against the individuals are covered by insurance or by an indemnification from the public entity for purposes of mediation.  Notwithstanding the foregoing, counsel representing the individual defendants shall provide the individual defendants with notice of the mediation conference and the individual defendants shall have the right to attend the mediation conference.  The mediator shall report non- attendance  to  the  Court.     Failure  to  comply  with  the  attendance  or  settlement  authority requirements may subject a party to sanctions by the Court.

(f) Mediation Report; Notice of Settlement; Judgment.

(1) Mediation Report.   Within seven (7) days following the mediation conference, the mediator, if an authorized user of the Court’s electronic filing system (CM/ECF), shall electronically file a Mediation Report.  If the mediator is not an authorized CM/ECF user, the mediator shall file the Mediation Report in the conventional manner.  The report shall indicate whether all required parties were present and whether the case settled (in full or in part), whether the mediation was adjourned, or whether the case did not settle.

(2) Notice of Settlement.  In the event that the parties reach an agreement to settle the case or claim, counsel shall promptly notify the Court of the settlement by filing a notice of settlement signed by counsel of record within fourteen (14) days of the mediation conference.   Thereafter the parties shall forthwith submit an appropriate pleading concluding the case.

(g) Trial upon Failure to Settle.

(1) Trial upon Failure to Settle.  If the mediation conference fails to result in a settlement, the case will be tried as originally scheduled.

(2) Restrictions on the Use of Information Derived During the Mediation Conference.  All proceedings of the mediation shall be confidential and are privileged in all respects as provided under federal law and Florida Statutes § 44.405.  The proceedings may not be reported, recorded, placed into evidence, made known to the Court or jury, or construed for any purpose as an admission against interest.  A party is not bound by anything said or done at the conference, unless a written settlement is reached, in which case only the terms of the settlement are binding.

Effective December 1, 1994.  Amended effective April 15, 1996; April 15, 1997; April 15, 1999; April 15, 2004; April 15, 2005; April 15, 2007; April 15, 2009; April 15, 2010; December 1, 2011; December 3, 2012; December 1, 2014.

Comments

(1996)[B.3(c).] Deletion of reference to Trial Bar to conform to new Local Rules 1 through 4 of the Special Rules Governing the Admission and Practice of Attorneys, effective January 1, 1996.

(1997)[C.] Letters rogatory and registrations of foreign judgment made exempt from mediation requirements as unnecessary.

(1997)[E.] Florida’s “Government in the Sunshine” Law, Florida Statutes Section 286.011, as incorporated into the Florida Government Cooperation Act, Florida Statutes Section 164.016, does not permit public entities to settle litigation against them without a public hearing preceded by due public notice.   Public entities have therefore at times found themselves unable to comply with Local Rule 16.2.E. and have had to seek an exception from the rule in order to permit mediation. This amendment relaxes the requirement that parties be present with full authority to consummate a settlement where a public entity is a defendant, and provides instead that a representative be present who can negotiate settlement on the entity’s behalf and recommend settlement to the entity.

(1999)[B.6] Language is added to clarify that mediators appointed by the Court without input by the parties are compensated at the rate set by the standing administrative order.

(2005)[B.3 and B.4] In addition to the requirement of completing the forty hour Florida Supreme

Court Circuit Court Mediation Training course, a mediator will now also be governed by the Standards of Professional Conduct in the Florida Rules for Certified and Court–Appointed Mediators, which provide ethical standards of conduct for certified and Court appointed mediators and incorporate procedures for the discipline and/or suspension of certified mediators or non- certified mediators appointed to mediate a case pursuant to Court rules.   The purpose of these Rules of discipline, specifically under Part III, is to provide a means for enforcing the ethical requirements set forth therein.

[B.7] This revision is intended to prevent the parties from using mediator fees as a negotiating wedge.  The mediator is now prohibited from engaging in fee shifting negotiations.  In addition, a provision was added to assist the Court in enforcing payment of mediation fees.

[C.] This revision expands the types of cases subject to mediation based on experience demonstrating the effectiveness of mediation in resolving disputes.

[F.1] Under the Florida Rules for Certified and Court–Appointed Mediators, now adopted by these Local Rules, a mediator, pursuant to Rule 10. 420(b) of the Florida Rules for Certified and Court– Appointed Mediators shall adjourn the mediation under any of five specified circumstances, four of which do not require the parties’ consent.

[G.2] This revision makes “all proceedings” of the mediation confidential, leaving no room for misinterpretation of the definition of what is considered to be confidential.   It is intended to broaden the confidentiality provision.

(2007) Amended to conform to CM/ECF Administrative Procedures.

[G.2] This revision is intended to make the privileges and confidentiality of mediation in the District consistent with state law.   The adoption of what constitutes privileged and confidential information under Florida Statutes Section 44.405 is exclusive of any remedies.

(2009) Local Rule 16.2.B.3 is amended to prescribe new qualifications for certification as a mediator in this District.   Local Rule 16.2.D.1(b) is amended to clarify procedure for mediator selection by agreement of the parties or for mediator designation by the Clerk of the Court when the parties are unable to agree on a mediator.

(2010) Amended to conform tabulation to the style used in the federal rules of procedure and change the calculation of time periods to correspond to the amendments to the various federal rules.

(2011) Local Rule 16.2(b)(4) amended to clarify the applicability of the Florida Rules for Certified and Court-Appointed Mediators adopted by the Florida Supreme Court and to provide a jurisdictional basis for imposing discipline.   Local Rule 16.2(f)(1) amended to conform with Florida  Mediator  Ethics  Advisory  Committee  Opinion  2010-007  (“The  terms  ‘impasse’  and ‘termination’ are terms of art used to signal particular outcomes of mediation.  Those terms … are not appropriate to be included in a mediation report to the court as they reveal information obtained in mediation communications.”).

(2012) Local Rule 16.2(b)(3) amended to delete reference to attorney admissions examination eliminated under Administrative Order 2012-14 and to heighten qualifications for mediator certification. Local 16.2(h) eliminated, and its forms relocated to the Court’s website.

(2014)   Amended to clarify parties’ obligations regarding personal attendance at a mediation conference.

International Trade Commission Section 337 Mediation Program – User Manual

INTRODUCTION

The Commission has approved the creation of a program for the mediation of disputes arising in investigations under Section 337 of the Tariff Act of 1930, as amended (“section 337”), pursuant to the Administrative Procedure Act, as amended. See 5 U.S.C. §§ 556(c) (6)-(8), 572-74, 583.

The administrative management of the mediation program is coordinated by the Secretary to the Com mission. The program is supervised by the Office of the Chairman in conjunction with the other members of the Commission.

The purpose of the mediation program is to facili tate settlement of disputes. The mediation program provides a confidential opportunity for parties to resolve their dispute.

IMPORTANT ASPECTS OF THE PROGRAM Pro-Bono, Single-Day Session

Program mediators have agreed to offer a single-day session free of charge to the litigants. Neverthe less, a mediator may charge the parties for time incurred in set-up and preparation for the first session with the prior consent of the parties. Program media tors are reimbursed by the Commission for travel and lodging inside the United States attributable  to the single-day, pro-bono session. Reimbursements for travel and lodging are subject to government regula tions and budgetary constraints. Mediators should coordinate with the Commission in advance of travel. No mediator is expected to serve in a pro-bono capacity beyond the required single-day mediation session, as defined above. The parties are free to engage the mediator on terms agreeable to all and consistent with the protections indicated in this manual if they wish to extend the mediation beyond the original single day session.

Confidentiality

Mediation communications are confidential as provided by law, by non-disclosure agreement, by the Standing Commission Protective Order for Mediation, by the protective order of the Administrative Law Judge, and by program design. Neither the Adminis trative Law Judge nor any Member of the Commission nor any member of the Office of the General Counsel conduct, participate in, or have knowledge of the mediation proceedings, other than the fact that an investigation is in mediation, as explained more fully herein. The Office of Unfair Import Investigations may participate in the mediation session(s) upon request of the parties.

Each mediator must sign a nondisclosure agreement which is then returned for countersignature by the Secretary. Each party representative and any in-house counsel participating in the mediation must sign a non-disclosure agreement. Each outside counsel participating in the mediation must sign a non disclosure agreement. The non-disclosure agreements place the participants under the Standing Commission Protective Order for Mediation which supplements any protective order issued by the presiding Administrative Law Judge in an investigation. The non-dis closure agreements also supplement the existing legal protections for confidentiality provided, inter alia, by 5 U.S.C. § 574, as set forth therein.

Any confidential written submissions for the mediator are for the eyes of the mediator only and are not part of the record of the investigation and will not be shared with other parties, any Administrative Law Judge, or the Commission in any way. The mediator communicates about mediation only with the Secretary to the Commission. The Secretary does not communicate with the Administrative Law Judges, the Office of the General Counsel, or the Commissioners about the substance of mediation proceedings, or any settlement that may result from mediation. Any settlement agreement that may result from mediation will be reviewed for consistency with the public interest by the Commission investigative attorney, the presiding Administrative Law Judge, and the Commission under the normal procedures of Commission rule 210.21.

The substance of the mediation is confidential and may not be disclosed by the mediator or any participants, except in the course of litigation concerning enforceability of any agreements reached through mediation, or as permitted by the terms of the non disclosure agreements and statute.  All mediators must protect the confidentiality of the substance of all proceedings, as set forth in the non-disclosure agreement for mediators.

The Secretary may discuss statistical information with the Commission needed to assess the mediation program itself. During the program, the Commission may from time to time have discussions with the Secretary and mediators with a view to revising the overall program while it is ongoing, as appropriate and necessary.

No Delay to Litigation

The Commission does not contemplate that mediations would be a cause for extensions of time in proceedings before the presiding Administrative Law Judge. The goal of mediation is to help the parties achieve an expeditious resolution to any disputes, not to cause delay.

Non-Compliance Sanctions

The program is subject to the standards of confidentiality provided, inter alia, in the non-disclosure agreements and the administrative dispute resolution act (5 U.S.C. § 574) in addition to normal rules of protection of confidential business information and all other applicable rules of conduct which govern other proceedings before the Commission. Motions for sanctions may be made to the Chief Administrative Law Judge who may assign the motion to an Administrative Law Judge other than the presiding Administrative Law Judge. Notwithstanding the confidentiality provisions of Section 5 of this manual, the mediator or the Secretary may communicate with the judge ruling on the motion only to the extent necessary to explain any recommendation for sanction.

Certification of Receipt of Program Materials and Discussion

Upon institution of an investigation based on a properly filed complaint, each named complainant and respondent will receive materials explaining the Commission mediation program, including a copy of this Users’ Manual. The materials will include a certi fication relating to the receipt and understanding of these materials which must be filled out and returned. The certification requirement may be satisfied in one of two ways: If a party has retained counsel, the lead counsel for the party may sign a certification that the party under his or her representation has received the materials and that counsel has discussed them with the party. If the party is not represented by counsel, a representative of the party (i.e., a business principal), may sign and return the certification attesting that he or she has read the materials. The required certifica tion shall be returned to the Secretary:

Secretary to the Commission

U.S. International Trade Commission

500 E Street SW, Room 112

Washington, DC 20436

Initiating Mediation

All Section 337 investigations are eligible for participation in the mediation program.

If an ALJ suggests mediation, is it a sign that your case is weak?

The Mediation Program User Manual makes clear the ALJ’s authority to order the parties to attend at least an initial consultation on mediation. Therefore, parties and their attorneys should not equate exploration of settlement through media tion as a negative reflection on the merits of their case. In fact, negotiated settlements are favored by the Commission and the courts as a matter of policy. An ALJ encouraging negotiations or mediation can be seen as a recognition that some times business solutions exist that have little to do with the merits of a dispute.

While it is expected that all or nearly all participation will be initiated by the counsel for the parties or the presiding Administrative Law Judge, the Secretary may also suggest mediation to the parties in an investigation, or to the presiding Administrative Law Judge, for inclusion in the program.

Selecting a Mediator

The Commission maintains a roster of prescreened mediators who have agreed to provide a single pro-bono session for Commission investigations.

The mediators are outside experts and conform. This request form is available on the USITC web site at http://www.usitc.gov/intellectual_property/me- diation.htm and should be submitted to the Secretary to the Commission. The parties do not file the request on EDIS. They may submit the request to the Secretary via email at 337Mediation@usitc.gov.

The presiding Administrative Law Judge may also refer investigations to the Secretary, who may discuss the possibility of mediation with the parties. Pursuant to 5 U.S.C. § 556(c)(6),(8), the presiding Administrative Law Judge may require attendance at a mediation session not to extend beyond one day.

Program mediators have agreed to offer a single-day session free of charge to the litigants. Nevertheless, a mediator may charge the parties for time incurred in set-up and preparation for the first session with the prior consent of the parties. (Please see the section of this Guide titled “Pro-Bono, Single-Day Session”).

Individuals wishing to serve as mediators may submit an applica tion to the Commission. The application is available on the USITC website at http://www.usitc.gov/intellectual_property/mediation.htm.

mediators must not be in active practice. For purposes of these guidelines “not be in active practice” means that the applicant or mediator is not appearing, and will not appear while a member of the Commission’s mediation roster as a counsel for a party or amicus in any matter before the Commission or from the Commission.

The Secretary assists the parties in selecting a mediator for each investigation. Parties may select a mediator from the roster of program mediators. The parties may also select a private mediator that they have identified on their own. If parties select a private mediator, the mediation is not considered to be under the 337 Mediation Program. Accordingly, parties would compensate the mediator by private contract between the parties and the mediator.

Before approving a mediator, the Secretary will inquire into conflicts of interest. If a mediator is af filiated with a law firm and that law firm represents or has represented a party to the investigation within the last five years, the mediator will recuse him or herself. The mediator must not represent either party or any amicus for any purpose, must disclose all past relationships that he or she has had with counsel, counsels’ firms, and the parties, and must disclose any potential “issues” conflicts. Mediators are required to decline from participating in any investigation in which there is a conflict of interest, in which they perceive a conflict of interest, or in which a reasonable person would perceive a conflict of interest. Mediators are required to err in favor of recusal when in doubt.

Participating in Mediation

Mediation is a flexible process intended to help the parties achieve settlement where possible.

The mediator is not bound by a defined formula or approach to mediating a case and the mediator con ducts the mediation as he or she deems appropriate. After assignment, the mediator may ask the represen tatives whether that party thinks the investigation is amenable to settlement and why or why not, which issues are negotiable, and whether there are any juris dictional issues. The mediator may review pleadings and documents available on EDIS in any case arising out of the same dispute. The mediator may also ask for brief confidential written submissions to help evalu ate areas of negotiation. (See the section of this Guide titled “Confidentiality”).

Mediation ceases at any time the mediator con cludes that further efforts will not be fruitful. The purpose of mediation is a settlement of the case. This may include a global settlement or the settlement or narrowing of some issues in dispute.

When available at the Commission and desired by the parties, space will be provided for the mediation to take place.

Who Should Attend the Session(s)

If the parties agree to participate in mediation or the Administrative Law Judge has required attendance at a mediation session, the mediator may require the attendance at the mediation of a person with actual settlement authority. “Actual settlement authority” does not simply mean sending a person allowed to ac cept or offer a minimum or maximum dollar amount. Rather, the party representative should be a person who can make independent decisions and has the knowledge necessary to generate and consider creative solutions, i.e., a business principal. These requirements may be modified or waived by the mediator if the circumstances dictate and the parties concur.

Concluding Mediation

The purpose of the mediation program is to help the parties achieve settlement. The mediation pro gram provides a confidential opportunity for parties to resolve their dispute. Unlike arbitration, where a decision may be binding, mediation will result in a settlement only if all parties agree on that resolu tion. If settlement is reached during mediation, the agreement is reduced to a writing, and is signed by and binding on all parties. If the parties have settled their dispute, the parties jointly must file a motion for termination of the investigation based upon a settlement agreement or seek a consent order regarding termination.

Any confidential written submissions for the mediator are for the eyes of the mediator only and are not part of the record of the investigation and will not be shared with other parties, any Administrative Law Judge, or the Commission in any way. The me diator communicates about mediation only with the Secretary to the Commission. The Secretary does not communicate with the Administrative Law Judges, the Office of Unfair Import Investigations, the Office of the General Counsel, or the Commissioners about the substance of mediation proceedings.

FLORIDA RULES OF CIVIL PROCEDURE Mediation and Arbitration Rules

RULE 1.700. RULES COMMON TO MEDIATION AND ARBITRATION

(a) Referral by Presiding Judge or by Stipulation. Except as hereinafter provided or as otherwise prohibited by law, the presiding judge may enter an order referring all or any part of a contested civil matter to mediation or arbitration. The parties to any contested civil matter may file a written stipulation to mediate or arbitrate any issue between them at any time. Such stipulation shall be incorporated into the order of referral.

(1) Conference or Hearing Date. Unless otherwise ordered by the court, the first mediation conference or arbitration hearing shall be held within 60 days of the order of referral.

(2) Notice. Within 15 days after the designation of the mediator or the arbitrator, the court or its designee, who may be the mediator or the chief arbitrator, shall notify the parties in writing of the date, time, and place of the conference or hearing unless the order of referral specifies the date, time, and place.

(b) Motion to Dispense with Mediation and Arbitration. A party may move, within 15 days after the order of referral, to dispense with mediation or arbitration, if:

(1) the issue to be considered has been previously mediated or arbitrated between the same parties pursuant to Florida law;

(2) the issue presents a question of law only;

(3) the order violates rule 1.710(b) or rule 1.800; or

(4) other good cause is shown.

(c) Motion to Defer Mediation or Arbitration. Within 15 days of the order of referral, any party may file a motion with the court to defer the proceeding. The movant shall set the motion to defer for hearing prior to the

scheduled date for mediation or arbitration. Notice of the hearing shall be provided to all interested parties, including any mediator or arbitrator who has been appointed. The motion shall set forth, in detail, the facts and circumstances supporting the motion. Mediation or arbitration shall be tolled until disposition of the motion.

(d) Disqualification of a Mediator or Arbitrator. Any party may move to enter an order disqualifying a mediator or an arbitrator for good cause. If the court rules that a mediator or arbitrator is disqualified from hearing a case, an order shall be entered setting forth the name of a qualified replacement. Nothing in this provision shall preclude mediators or arbitrators from disqualifying them¬selves or refusing any assignment. The time for mediation or arbitration shall be tolled during any periods in which a motion to disqualify is pending.

1990 Editor’s Note: Rules 1.700–1.830 were adopted in Rules of Civil Procedure, In re Proposed Rules for Implementation of Florida Statutes Sections 44.301–.306, 518 So.2d 908 (Fla. 1987), and amended in 563 So.2d 85 (Fla. 1990).

RULE 1.710. MEDIATION RULES

(a) Completion of Mediation. Mediation shall be completed within 45 days of the first mediation conference unless extended by order of the court or by stipulation of the parties.

(b) Exclusions from Mediation. A civil action shall be ordered to mediation or mediation in conjunction with arbitration upon stipulation of the parties. A civil action may be ordered to mediation or mediation in conjunction with arbitration upon motion of any party or by the court, if the judge determines the action to be of such a nature that mediation could be of benefit to the litigants or the court. Under no circumstances may the following categories of actions be referred to mediation:

(1) Bond estreatures.

(2) Habeas corpus and extraordinary writs.

(3) Bond validations.

(4) Civil or criminal contempt.

(5) Other matters as may be specified by administrative order of the chief judge in the circuit.

(c) Discovery. Unless stipulated by the parties or ordered by the court, the mediation process shall not suspend discovery.

Committee Notes

1994 Amendment. The Supreme Court Committee on Mediation and Arbitration Rules encourages crafting a combination of dispute resolution processes without creating an unreasonable barrier to the traditional court system.

RULE 1.720. MEDIATION PROCEDURES

(a) Interim or Emergency Relief. A party may apply to the court for interim or emergency relief at any time. Mediation shall continue while such a motion is pending absent a contrary order of the court, or a decision of the mediator to adjourn pending disposition of the motion. Time for completing mediation shall be tolled during any periods when mediation is interrupted pending resolution of such a motion.

(b) Appearance at Mediation. Unless otherwise permitted by court order or stipulated by the parties in writing, a party is deemed to appear at a mediation conference if the following persons are physically present:

(1) The party or a party representative having full authority to settle without further consultation; and

(2) The party’s counsel of record, if any; and

(3) A representative of the insurance carrier for any insured party who is not such carrier’s outside counsel and who has full authority to settle in an amount up to the amount of the plaintiff’s last demand or policy limits, whichever is less, without further consultation.

(c) Party Representative Having Full Authority to Settle. A “party representative having full authority to settle” shall mean the final decision maker with respect to all issues presented by the case who has the legal capacity to execute a binding settlement agreement on behalf of the party. Nothing herein shall be deemed to require any party or party representative who appears at a mediation conference in compliance with this rule to enter into a settlement agreement.

(d) Appearance by Public Entity. If a party to mediation is a public entity required to operate in compliance with chapter 286, Florida Statutes, that party shall be deemed to appear at a mediation conference by the physical presence of a representative with full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision-making body of the entity.

(e) Certification of Authority. Unless otherwise stipulated by the parties, each party, 10 days prior to appearing at a mediation conference, shall file with the court and serve all parties a written notice identifying the person or persons who will be attending the mediation conference as a party representative or as an insurance carrier representative, and confirming that those persons have the authority required by subdivision (b).

(f) Sanctions for Failure to Appear. If a party fails to appear at a duly noticed mediation conference without good cause, the court, upon motion, shall impose sanctions, including award of mediation fees, attorneys’ fees, and costs, against the party failing to appear. The failure to file a confirmation of authority required under subdivision (e) above, or failure of the persons actually identified in the confirmation to appear at the mediation conference, shall create a rebuttable presumption of a failure to appear.

(g) Adjournments. The mediator may adjourn the mediation conference at any time and may set times for reconvening the adjourned conference notwithstanding rule 1.710(a). No further notification is required for parties present at the adjourned conference.

(h) Counsel. The mediator shall at all times be in control of the mediation and the procedures to be followed in the mediation. Counsel shall be permitted to communicate privately with their clients. In the discretion of the mediator and with the agreement of the parties, mediation may proceed in the absence of counsel unless otherwise ordered by the court.

(i) Communication with Parties or Counsel. The mediator may meet and consult privately with any party or parties or their counsel.

(j) Appointment of the Mediator.

(1) Within 10 days of the order of referral, the parties may agree upon a stipulation with the court designating:

(A) a certified mediator, other than a senior judge presiding as a judge in that circuit; or

(B) a mediator, other than a senior judge, who is not certified as a mediator but who, in the opinion of the parties and upon review by the presiding judge, is otherwise qualified by training or experience to mediate all or some of the issues in the particular case.

(2) If the parties cannot agree upon a mediator within 10 days of the order of referral, the plaintiff or petitioner shall so notify the court within 10 days of the expiration of the period to agree on a mediator, and the court shall appoint a certified mediator selected by rotation or by such other procedures as may be adopted by administrative order of the chief judge in the circuit in which the action is pending. At the request of either party, the court shall appoint a certified circuit court mediator who is a member of The Florida Bar.

(3) If a mediator agreed upon by the parties or appointed by a court cannot serve, a substitute mediator can be agreed upon or appointed in the same manner as the original mediator. A mediator shall not mediate a case assigned to another mediator without the agreement of the parties or approval of the court. A substitute mediator shall have the same qualifications as the original mediator.

(k) Compensation of the Mediator. The mediator may be compensated or uncompensated. When the mediator is compensated in whole or part by the parties, the presiding judge may determine the reasonableness of the fees charged by the mediator. In the absence of a written agreement providing for the mediator’s compensation, the mediator shall be compensated at the hourly rate set by the presiding judge in the referral order. Where appropriate, each party shall pay a proportionate share of the total charges of the mediator. Parties may object to the rate of the mediator’s compensation within 15 days of the order of referral by serving an objection on all other parties and the mediator.

Committee Notes

2011 Amendment. Mediated settlement conferences pursuant to this rule are meant to be conducted when the participants actually engaged in the settlement negotiations have full authority to settle the case without further consultation. New language in subdivision (c) now defines “a party representative with full authority to settle” in two parts. First, the party representative must be the final decision maker with respect to all issues presented by the case in question. Second, the party representative must have the legal capacity to execute a binding agreement on behalf of the settling party. These are objective standards. Whether or not these standards have been met can be determined without reference to any confidential mediation communications. A decision by a party representative not to settle does not, in and of itself, signify the absence of full authority to settle. A party may delegate full authority to settle to more than one person, each of whom can serve as the final decision maker. A party may also designate multiple persons to serve together as the final decision maker, all of whom must appear at mediation.

New subdivision (e) provides a process for parties to identify party representative and representatives of insurance carriers who will be attending the mediation conference on behalf of parties and insurance carriers and to confirm their respective settlement authority by means of a direct representation to the court. If necessary, any verification of this representation would be upon motion by a party or inquiry by the court without involvement of the mediator and would not require disclosure of confidential mediation communications. Nothing in this rule shall be deemed to impose any duty or obligation on the mediator selected by the parties or appointed by the court to ensure compliance.

The concept of self determination in mediation also contemplates the parties’ free choice in structuring and organizing their mediation sessions, including those who are to participate. Accordingly, elements of this rule are subject to revision or qualification with the mutual consent of the parties.

RULE 1.730. COMPLETION OF MEDIATION

(a) No Agreement. If the parties do not reach an agreement as to any matter as a result of mediation, the mediator shall report the lack of an agreement to the court without comment or recommendation. With the consent of the parties, the mediator’s report may also identify any pending motions or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed, would facilitate the possibility of a settlement.

(b) Agreement. If a partial or final agreement is reached, it shall be reduced to writing and signed by the parties and their counsel, if any. The agreement shall be filed when required by law or with the parties’ consent. A report of the agreement shall be submitted to the court or a stipulation of dismissal shall be filed. By stipulation of the parties, the agreement may be electronically or stenographically recorded. In such event, the transcript may be filed with the court. The mediator shall report the existence of the signed or transcribed agreement to the court without comment within 10 days thereof. No agreement under this rule shall be reported to the court except as provided herein.

(c) Imposition of Sanctions. In the event of any breach or failure to perform under the agreement, the court upon motion may impose sanctions, including costs, attorneys’ fees, or other appropriate remedies including entry of judgment on the agreement.

Committee Notes

1996 Amendment. Subdivision (b) is amended to provide for partial settlements, to clarify the procedure for concluding mediation by report or stipulation of dismissal, and to specify the procedure for reporting mediated agreements to the court. The reporting requirements are intended to ensure the confidentiality provided for in section 44.102(3), Florida Statutes, and to prevent premature notification to the court.

RULE 1.750. COUNTY COURT ACTIONS

(a) Applicability. This rule applies to the mediation of county court matters and issues only and controls over conflicting provisions in rules 1.700, 1.710, 1.720, and 1.730.

(b) Limitation on Referral to Mediation. When a mediation program utilizing volunteer mediators is unavailable or otherwise inappropriate, county court matters may be referred to a mediator or mediation program which charges a fee. Such order of referral shall advise the parties that they may object to mediation on grounds of financial hardship or on any ground set forth in rule 1.700(b). If a party objects, mediation shall not be conducted until the court rules on the objection. The court may consider the amount in controversy, the objecting party’s ability to pay, and any other pertinent information in determining the propriety of the referral. When appropriate, the court shall apportion mediation fees between the parties.

(c) Scheduling. In small claims actions, the mediator shall be appointed and the mediation conference held during or immediately after the pretrial conference unless otherwise ordered by the court. In no event shall the mediation conference be held more than 14 days after the pretrial conference.

(d) Appointment of the Mediator. In county court actions not subject to the Florida Small Claims Rules, rule 1.720(f) shall apply unless the case is sent to a mediation program provided at no cost to the parties.

(e) Appearance at Mediation. In small claims actions, an attorney may appear on behalf of a party at mediation provided that the attorney has full authority to settle without further consultation. Unless otherwise ordered by the court, a nonlawyer representative may appear on behalf of a party to a small claims mediation if the representative has the party’s signed written authority to appear and has full authority to settle without further consultation. In either event, the party need not appear in person. In any other county court action, a party will be deemed to appear if the persons set forth in rule 1.720(b) are physically present.

(f) Agreement. Any agreements reached as a result of small claims mediation shall be written in the form of a stipulation. The stipulation may be entered as an order of the court.

RULE 1.800. EXCLUSIONS FROM ARBITRATION

A civil action shall be ordered to arbitration or arbitration in conjunction with mediation upon stipulation of the parties. A civil action may be ordered to arbitration or arbitration in conjunction with mediation upon motion of any party or by the court, if the judge determines the action to be of such a nature that arbitration could be of benefit to the litigants or the court. Under no circumstances may the following categories of actions be referred to arbitration:

(1) Bond estreatures.

(2) Habeas corpus or other extraordinary writs.

(3) Bond validations.

(4) Civil or criminal contempt.

(5) Such other matters as may be specified by order of the chief judge in the circuit.

Committee Notes

1994 Amendment. The Supreme Court Committee on Mediation and Arbitration Rules encourages crafting a combination of dispute resolution processes without creating an unreasonable barrier to the traditional court system.

RULE 1.810. SELECTION AND COMPENSATION OF ARBITRATORS

(a) Selection. The chief judge of the circuit or a designee shall maintain a list of qualified persons who have agreed to serve as arbitrators. Cases assigned to arbitration shall be assigned to an arbitrator or to a panel of 3 arbitrators. The court shall determine the number of arbitrators and designate them within 15 days after service of the order of referral in the absence of an agreement by the parties. In the case of a panel, one of the arbitrators shall be appointed as the chief arbitrator. Where there is only one arbitrator, that person shall be the chief arbitrator.

(b) Compensation. The chief judge of each judicial circuit shall establish the compensation of arbitrators subject to the limitations in section 44.103(3), Florida Statutes.

Committee Notes

2003 Amendment. The statutory reference in subdivision (b) is changed to reflect changes in the statutory numbering.

RULE 1.820. HEARING PROCEDURES FOR NON-BINDING ARBITRATION

(a) Authority of the Chief Arbitrator. The chief arbitrator shall have authority to commence and adjourn the arbitration hearing and carry out other such duties as are prescribed by section 44.103, Florida Statutes. The chief arbitrator shall not have authority to hold any person in contempt or to in any way impose sanctions against any person.

(b) Conduct of the Arbitration Hearing.

(1) The chief judge of each judicial circuit shall set procedures for determining the time and place of the arbitration hearing and may establish other procedures for the expeditious and orderly operation of the arbitration hearing to the extent such procedures are not in conflict with any rules of court.

(2) Hearing procedures shall be included in the notice of arbitration hearing sent to the parties and arbitration panel.

(3) Individual parties or authorized representatives of corporate parties shall attend the arbitration hearing unless excused in advance by the chief arbitrator for good cause shown.

(c) Rules of Evidence. The hearing shall be conducted informally. Presentation of testimony shall be kept to a minimum, and matters shall be presented to the arbitrator(s) primarily through the statements and arguments of counsel.

(d) Orders. The chief arbitrator may issue instructions as are necessary for the expeditious and orderly conduct of the hearing. The chief arbitrator’s instructions are not appealable. Upon notice to all parties the chief arbitrator may apply to the presiding judge for orders directing compliance with such instructions. Instructions enforced by a court order are appealable as are other orders of the court.

(e) Default of a Party. When a party fails to appear at a hearing, the chief arbitrator may proceed with the hearing and the arbitration panel shall render a decision based upon the facts and circumstances as presented by the parties present.

(f) Record and Transcript. Any party may have a record and transcript made of the arbitration hearing at that party’s expense.

(g) Completion of the Arbitration Process.

(1) Arbitration shall be completed within 30 days of the first arbitration hearing unless extended by order of the court on motion of the chief arbitrator or of a party. No extension of time shall be for a period exceeding 60 days from the date of the first arbitration hearing.

(2) Upon the completion of the arbitration process, the arbitrator(s) shall render a decision. In the case of a panel, a decision shall be final upon a majority vote of the panel.

(3) Within 10 days of the final adjournment of the arbitration hearing, the arbitrator(s) shall notify the parties, in writing, of their decision. The arbitration decision may set forth the issues in controversy and the arbitrator(’s)(s’) conclusions and findings of fact and law. The arbitrator(’s)(s’) decision and the originals of any transcripts shall be sealed and filed with the clerk at the time the parties are notified of the decision.

(h) Time for Filing Motion for Trial. Any party may file a motion for trial. If a motion for trial is filed by any party, any party having a third-party claim at issue at the time of arbitration may file a motion for trial within 10 days of service of the first motion for trial. If a motion for trial is not made within 20 days of service on the parties of the decision, the decision shall be referred to the presiding judge, who shall enter such orders and judgments as may be required to carry out the terms of the decision as provided by section 44.103(5), Florida Statutes.

Committee Notes

1988 Adoption. Arbitration proceedings should be informal and expeditious. The court should take into account the nature of the proceedings when determining whether to award costs and attorneys’ fees after a trial de novo. Counsel are free to file exceptions to an arbitration decision or award at the time it is to be considered by the court. The court should consider such exceptions when determining whether to award costs and attorneys’ fees. The court should consider rule 1.442 concerning offers of judgment and section 45.061, Florida Statutes (1985), concerning offers of settlement, as statements of public policy in deciding whether fees should be awarded.

1994 Amendment. The Supreme Court Committee on Mediation and Arbitration Rules recommends that a copy of the local arbitration procedures be disseminated to the local bar.

2003 Amendment. The statutory reference in subdivision (h) is changed to reflect changes in the statutory numbering.

2007 Amendment. Subdivision (h) is amended to avoid the unintended consequences for defendants with third-party claims who prevailed at arbitration but could not pursue those claims in a circuit court action because no motion for trial was filed despite a plaintiff or plaintiffs having filed a motion for trial that covered those claims. See State Dept. of Transportation v. BellSouth Telecommunications, Inc., 859 So. 2d 1278 (Fla. 4th DCA 2003).

RULE 1.830. VOLUNTARY BINDING ARBITRATION (a) Absence of Party Agreement.

(1) Compensation. In the absence of an agreement by the parties as to compensation of the arbitrator(s), the court shall determine the amount of compensation subject to the provisions of section 44.104(3), Florida Statutes.

(2) Hearing Procedures. Subject to these rules and section 44.104, Florida Statutes, the parties may, by written agreement before the hearing, establish the hearing procedures for voluntary binding arbitration. In the absence of such agreement, the court shall establish the hearing procedures.

(b) Record and Transcript. A record and transcript may be made of the arbitration hearing if requested by any party or at the direction of the chief arbitrator. The record and transcript may be used in subsequent legal proceedings subject to the Florida Rules of Evidence.

(c) Arbitration Decision and Appeal.

(1) The arbitrator(s) shall serve the parties with notice of the decision and file the decision with the court within 10 days of the final adjournment of the arbitration hearing.

(2) A voluntary binding arbitration decision may be appealed within 30 days after service of the decision on the parties. Appeal is limited to the grounds specified in section 44.104(10), Florida Statutes.

(3) If no appeal is filed within the time period set out in subdivision (2) of this rule, the decision shall be referred to the presiding judge who shall enter such orders and judgments as required to carry out the terms of the decision as provided under section 44.104(11), Florida Statutes.

RULE 1.900. FORMS

(a) Process. The following forms of process, notice of lis pendens, and notice of action are sufficient. Variations from the forms do not void process or notices that are otherwise sufficient.

(b) Other Forms. The other forms are sufficient for the matters that are covered by them. So long as the substance is expressed without prolixity, the forms may be varied to meet the facts of a particular case.

(c) Formal Matters. Captions, except for the designation of the paper, are omitted from the forms. A general form of caption is the first form. Signatures are omitted from pleadings and motions.

Editor’s Note: Fla.R.Jud.Admin. 2.540 requires that a notice to persons with disabilities be included in “[a]ll notices of court proceedings to be held in a public facility, and all process compelling appearance at such proceedings.” The content of the notice is set forth in that rule.

Kinnard Mediation Center MEDIATION IN THE ELEVENTH CIRCUIT COURT OF APPEALS

1. INTRODUCTION

The Eleventh Circuit launched its mediation program in 1992. Formerly known as the Circuit Mediation Office, in 2001 the Eleventh Circuit designated the office as the Kinnard Mediation Center (KMC) to honor Stephen O. Kinnard, the first chief circuit mediator, and his extraordinary service in making mediation a fundamental component of the Eleventh Circuit’s appeals process.

The KMC conducts mediation of civil appeals pursuant to Fed. R. App. P. 33 and 11th Cir. R. 33-1. The court’s mediation process provides opportunities for parties to resolve their dispute confidentially with the help of a neutral third party. Each year hundreds of appeals are resolved through the mediation program.

The KMC’s circuit mediators are full-time court employees and have extensive trial and appellate experience as well as extensive experience in negotiation, mediation, and Eleventh Circuit practice and procedure. The circuit mediators are located in Atlanta and Miami.

Since October 1, 2006, the court has allowed for the substitution of private mediators upon agreement of all parties and at their expense. 11th Cir. R. 33-1(g) and the document “Private Mediator Procedures for Mediation of Appeals” provide the procedures and requirements that govern the use of private mediators for this purpose.

All mediation program documents are available on the Internet at www.ca11.uscourts.gov. Maps and directions to Eleventh Circuit buildings are available under the section titled “About the Court.”

2. ELIGIBLE APPEALS

Generally, all civil appeals are eligible for mediation conducted by the KMC. However, appeals or petitions in which any party is proceeding without the assistance of counsel or in which any party is incarcerated, appeals from habeas corpus actions, and immigration appeals are not eligible. If eligible, participation in the mediation program is mandatory.

3. SELECTION PROCESS

Eligible appeals are sorted by district and rotationally assigned to the circuit mediators. The circuit mediators review each appeal they are assigned before scheduling it for mediation and may remove an appeal from the mediation program based on a procedural reason or a discretionary reason.

The KMC, an active or senior judge of the court of appeals, or a hearing panel of judges, either before or after oral argument, may direct counsel and parties in an appeal to participate in mediation conducted by the KMC.

4. DOCUMENTS REVIEWED

The Civil Appeal Statement, accompanied by required portions of the record, the notice of appeal, the district court and court of appeals dockets, and, in appeals scheduled for mediation, the required Confidential Mediation Statements of counsel provide the KMC with the information necessary for an understanding of the nature of the appeal.

5. SCHEDULING PROCESS

The KMC sends written notice of the initial mediation to lead counsel, to be received at least two weeks before the mediation date. The KMC schedules most mediations soon after court of appeals docketing the filing of the Civil Appeal Statement and before briefing. (Counsel are encouraged to confer with each other and the circuit mediator with a view towards deferring the briefing schedule until after the mediation occurs. The circuit mediator has authority to adjust the briefing schedule for purposes of improving the prospects of a successful mediation. See Part 9.)

If the parties consult and all agree that mediation would not be productive, they may contact the circuit mediator handling the appeal to discuss changing the scheduled mediation to an assessment conference. The decision on whether to hold an assessment conference rests with the circuit mediator. If before the mediation counsel files a joint or unopposed motion to dismiss the appeal, counsel should call the KMC to cancel the mediation.

6. MEDIATION PROCESS

Initial mediations are usually conducted in person at the KMC either in Atlanta or Miami or conducted by telephone.  If counsel outside of the Atlanta area or Miami area are noticed for an in-person mediation, but all parties prefer to have a telephone mediation, counsel may call the circuit mediator to discuss a change. Similarly, if counsel are noticed for a telephone mediation but all parties prefer to have an in-person mediation, counsel may call the circuit mediator to discuss a change. The decision to reformat a mediation from in-person to telephonic lies solely with the circuit mediator.

The circuit mediator begins the mediation session by describing the mediation process, discussing confidentiality, and inquiring whether any procedural questions or problems can be resolved by agreement. The parties and the circuit mediator then discuss, either jointly or separately, and in no particular order, (a) the legal issues and the appellate court’s decision-making process regarding these issues (e.g., preservation of error, waiver, standards of review); (b) any efforts to settle the appeal; (c) the parties’ underlying interests, preferences, motivations, and assumptions and new information or other changes that may have occurred since the decision below; (d) future events based upon the various outcomes; (e) how resolution of the appeal could affect the underlying problem; (f) cost-benefit and time considerations; and (g) any procedural alternatives possibly applicable to the appeal (e.g., vacatur, remand). The discussion is not limited to these topics and will vary considerably depending on the circumstances of each appeal. The circuit mediator also attempts to generate offers and counteroffers and may conduct several follow-up mediation sessions by telephone or in person until the appeal settles or the circuit mediator reaches the conclusion that it will not settle.

Counsel should allow three hours for initial telephonic mediations; from four hours to all day for initial in-person mediations; and from thirty minutes to one hour for assessment conferences and follow-up mediation sessions. Full pursuit of all opportunities for negotiated settlement might require extensive mediator follow-up activity such as additional telephone calls, in-person sessions, or caucuses with each side separately.

7. PARTY AND SETTLEMENT REPRESENTATIVE PARTICIPATION

The KMC attempts to identify lead counsel for all parties and instructs counsel to promptly advise the assigned circuit mediator if the purposes of the mediation would be accomplished more effectively with different or additional attorneys or participants.

Participants. Except as waived by the circuit mediator in advance of the mediation date, each of the following must participate in the entire mediation, including any follow-up sessions, until either a settlement is reached or the circuit mediator declares an impasse:

(a) Counsel, client, and a representative of any person or entity directly affected financially by the outcome of the litigation (indemnitors, etc.) must personally participate.

(b) Insurers: A representative of any insurance company, either as a party or nonparty, that has not offered policy limits must personally participate with authority and discretion to settle up to policy limits or the amount of the claimant’s last settlement demand, whichever is less. If an insured party has any exposure outside of policy limits or has control or influence on

the amount paid within policy limits, then both the insured party and the representative must personally participate.

(c) Governmental entities: When a party is a governmental entity that approves settlements by a deliberative session, then a member of that deliberating body or the entity’s executive director or a person expressly designated by the director must personally participate.

Authority. Representatives of parties must have authority to dismiss any affirmative claim unconditionally or to pay a claim (or most recent settlement demand) in full, if in the client- representative’s sole discretion resolution on that basis is appropriate. Representatives for governmental entities that make decisions collectively must have authority to negotiate on behalf of and to make recommendations to such entity concerning settlement. All parties and counsel are required to participate in the mediation in good faith and with the intention of attempting to settle on a basis all parties can accept.

8. CONFIDENTIAL MEDIATION STATEMENT

11th Cir. R. 33-1(d) requires that counsel in appeals selected for mediation send the circuit mediator a Confidential Mediation Statement assessing the prospects of the appeal. Counsel should fax, mail, or email the statement so that the circuit mediator receives it at least one week before the mediation date. It should be in letter format and preferably not more than five pages. The circuit mediator does not share the statement with the other side, and it does not become part of the court file. In the statement counsel should:

(a) Recite the circumstances that gave rise to the litigation, including facts underlying any procedural issues in the appeal.

(b) Describe any matters pending in the lower court or in any related litigation.

(c) Describe any recent developments that may affect the resolution of the appeal.

(d) Describe the important factors (factual, legal, practical) counsel believes affect the terms and conditions upon which the appeal may reasonably be settled.

(e) Describe any efforts to settle the issues, including offers or demands before and since the judgment or order appealed from.

(f) Provide a candid assessment of the strengths and weaknesses of the major points of error of the appeal.

(g) Describe the necessary terms in any settlement (i.e., confidentiality, date by which settlement must close, scope of release, disposition of related litigation, etc.).

(h) Describe any additional information counsel’s client or the other party needs to settle the appeal and whether it is needed before the mediation.

(i) State whether counsel and counsel’s parties will participate in the mediation in good faith with the intention of using their best efforts to settle the appeal, and explain if “no” as to any party.

(j) State whether counsel and counsel’s parties will maintain confidentiality with respect to settlement communications made and received during and subsequent to the mediation, and explain if “no” as to any party.

(k) If the appeal were remanded, describe the realistic range of outcomes upon further trial or disposition by the lower court, including monetary remedies, attorney’s fees, court costs, further appellate costs, and similar awards the lower court might have opportunity to consider awarding.

(l) Provide the name, title, address, telephone number, and email address of each person who will be participating in the mediation with counsel and designate which persons will have settlement or negotiating authority. (As required in the Notice of Mediation, also provide this participant information to opposing counsel in a communication separate from this Confidential Mediation Statement, with a copy to the circuit mediator.)

9. EXTENSIONS OF TIME TO FILE BRIEFS

The filing of a Civil Appeal Statement or the scheduling or rescheduling of a mediation conference does not stay appellate proceedings. The due-date for filing briefs, however, may be extended by the KMC if the conditions described below exist, there is substantial probability the appeal can settle via mediation, and the extension will prevent the unnecessary expenditure of time and resources by counsel, the parties, and the court.

Length of KMC Extensions. The KMC may grant extensions of time to file an appellant’s or appellee’s brief for not more than 30 days from the date of a scheduled initial mediation, and for additional periods of not more than 30 days, to facilitate the prospects of settlement. Also, if warranted, the KMC may grant extensions of time to file a reply brief for up to seven days.

Impasse. If after mediation negotiations through the KMC are declared an impasse by the circuit mediator, the KMC may grant one extension of time to file a brief that is due within 14 days of the impasse date for up to 21 days past the impasse date so that counsel will have as much as three weeks to prepare the brief after participating in the mediation. Consent of opposing counsel is not necessary in this event. This request must be made verbally at the declaration of impasse and then immediately followed with an email as below.

Assessment Conference. The KMC is without authority to grant any extension if an initial mediation is changed to an assessment conference. If during the assessment conference an initial mediation is scheduled, then going forward the KMC may grant extensions.

Requirements. Counsel of record may request a KMC brief extension if the following requirements are met:

(a) All parties agree to extend the due-date (not necessary in event of impasse).

(b) The extension will (1) facilitate a productive mediation or (2) facilitate prospects of settlement or (3) allow counsel not more than 21 days to prepare the brief after having participated in an unsuccessful mediation.

(c) The deadline for submitting the brief has not passed.

(d) Counsel has not previously filed a motion for an extension of time. (e) The briefing schedule has not been established by court order.

Appellees may not request an extension until receipt of the appellant’s brief is entered on the clerk’s docket. Requests received after 3 p.m. Eastern Time will be processed the next business day. Due-dates that are a Saturday, Sunday, or legal holiday will be set for the next business day.

Instructions. To make a request, counsel of record should email the KMC’s brief extension coordinator at KMC_Brief_Extensions@ca11.uscourts.gov, copying the circuit mediator and counsel for each party separately represented, using the format below.

[Email]

To:                  KMC_Brief_Extensions@ca11.uscourts.gov

From:              [counsel of record]

Cc:                  [circuit mediator, counsel for each party separately represented] Subject:          Brief Extension Requested: [appeal number(s) and short caption] [Text]

Circuit Mediator: [Name] Initial mediation date: [Date]

Brief of [Appellant(s) or Appellee(s)]: [name of party or parties]

Current due date: [Date]

New due date requested: [Date]

I have contacted opposing counsel and represent that all parties agree to this extension. I meet the requirements necessary to obtain a KMC Brief Extension and request the above extension of time. I understand that if the KMC grants the extension it will forward this email to the clerk, copying the circuit mediator and counsel for each party separately represented (as copied with email request), and the clerk will update the docket to reflect the new due date.

Other Requests for Extensions. If counsel does not meet the requirements for a KMC extension, a first request for an extension of seven calendar days or less can be made by telephone or in writing to the clerk. A first request for an extension of more than seven calendar days must be made by written motion to the court (11th Cir. R. 31-2(a)). Counsel’s motion must not contain any reference to the KMC, as required by the confidentiality rules governing the program (11th Cir. R. 33-1(c)).

10. VOLUNTARY SETTLEMENT

Because settlement is voluntary, circuit mediators take no actions affecting the interests of any party without the consent of all parties. If the parties reach a settlement, counsel prepare the settlement agreement, which is binding upon all parties, and file a joint (or agreed) motion to dismiss. If the appeal does not settle, the circuit mediator declares an impasse. Negotiations may resume at any time (including post-oral argument) until the appeal is terminated.

11. POST-SETTLEMENT DISMISSAL PROCEDURES

When the parties have reached a settlement and all parties agree on the terms of settlement, counsel should file a joint (or agreed) motion to dismiss under Fed. R. App. P. 42(b) and 11th Cir. R. 42-1(a). This motion should address the following:

(a) Whether the dismissal pertains to all parties and claims on appeal.

(b) Whether the appeal is to be dismissed without prejudice (which may be granted by the clerk) or with prejudice (which must be ruled upon by a panel of three judges).

(c) Whether the parties are to bear their own costs or another agreed apportionment. The motion to dismiss either should be signed by all parties or, if submitted by one party, should contain an explicit statement that all other parties to the settlement agreement consent. If submitted by only one party, the motion should be submitted by the appellant. All motions must be accompanied by a certificate of service and a certificate of interested parties (11th Cir. R. 27-1(a)).

Settlement does not automatically stay any of the actions required under the rules to be timely performed, including ordering necessary transcripts and briefing. If counsel has a brief due prior to a motion to dismiss being presented and decided, counsel may request an extension of time to complete that action by following the “Extensions of Time to File Briefs” procedures in Part 9 above. If the appeal is scheduled for oral argument, counsel should contact the court sessions unit of the clerk’s office at 404-335-6131 for further direction.

12. CONFIDENTIALITY

To encourage efficient and frank settlement discussions, the court exercises great care to insure strict confidentiality in the mediation process. 11th Cir. R. 33-1’s confidentiality provisions apply to all mediated appeals, including appeals that judges refer to mediation. The rule directs all parties and participants in the mediation process to keep confidential all statements and comments made or received during the mediation and in subsequent communications, including not disclosing them (or making any reference to the KMC or circuit mediation) in papers, motions, or arguments “to any court or adjudicative body that might address the appeal’s merits.” The rule provides limited exceptions: release that is necessary to enforce noncompliance sanctions, release to those entitled to know about the mediation by reason of a position or relationship with a party, or release with the written consent of each mediation participant.

The circuit mediator’s notes and counsel’s Confidential Mediation Statements do not become part of the court’s file. The KMC does not reveal any request by counsel for mediation without the requesting party’s permission. Ex parte communications are also confidential except to the extent disclosure is authorized. A party with specific concerns about confidentiality should raise them with the circuit mediator.

13. NONCOMPLIANCE SANCTIONS

11th Cir. R. 33-1(f) authorizes the clerk, after notice, to dismiss the appeal of a party who does not file a timely Civil Appeal Statement and authorizes the court, in the case of a party or attorney who fails to comply with the rule or the court’s notice of mediation, to (a) assess reasonable expenses caused by the failure, including attorneys’ fees or all or a portion of the appellate costs; (b) dismiss the appeal; or (c) take such other action it believes is warranted.

Eleventh Circuit Court of Appeals Mediation Rules

FRAP 33. Appeal Conferences

The court may direct the attorneys — and, when appropriate, the parties — to participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement. A judge or other person designated by the court may preside over the conference, which may be conducted in person or by telephone.  Before a settlement conference, the attorneys must consult with their clients and obtain as much authority as feasible to settle the case.  The court may, as a result of the conference, enter an order controlling the course of the proceedings or implementing any settlement agreement.

(As amended Apr. 29, 1994; eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.)

* * * *

11th Cir. R. 33-1 Kinnard Mediation Center.

(a) Filing Civil Appeal Statement.

A Civil Appeal Statement is required in all civil appeals, except as provided in section (a)(3)

(1) Civil appeals from United States district courts. When notice of the filing of a notice of appeal is served pursuant to FRAP 3(d), the clerk of the district court shall notify the appellant(s) (and cross-appellant(s)) that a Civil Appeal Statement form is available as provided in section (a)(4) below. The appellant(s) (and cross-appellant(s)) shall file with the clerk of the court of appeals, with service on all other parties, an original and one copy of a completed Civil Appeal Statement within 14 days after the date the appeal is docketed in this court.  The completed Civil Appeal Statement shall set forth information necessary for an understanding of the nature of the appeal and shall be accompanied by the portion of the district court record described in 11th Cir. R. 33-1(b)(1).  Any appellee may file an original and one copy of a response with the court of appeals within 10 days of the receipt of the completed Civil Appeal Statement and shall serve a copy of the response on all other parties.

(2) Review of administrative agency orders and appeals from the United States Tax Court. When the clerk of the court of appeals notifies the parties that an appeal or petition has been docketed, the clerk shall also notify the appellant(s)/petitioner(s) (and cross-appellant(s)/cross- petitioner(s)) that a Civil Appeal Statement form is available as provided in section (a)(4) below. The appellant(s)/petitioner(s) (and cross-appellant(s)/cross-petitioner(s)) shall file with the clerk of the court of appeals, with service on all other parties, an original and one copy of a completed Civil Appeal Statement within 14 days from the date the notice was transmitted by the clerk of the court of appeals.  The completed Civil Appeal Statement shall set forth information necessary for an understanding of the nature of the appeal or petition and shall be accompanied by the portion of the record described in 11th Cir. R. 33-1(b). Any appellee/respondent may file an original and one copy of a response with the court of appeals within 10 days of the receipt of the completed Civil Appeal Statement and shall serve a copy of the response on all other parties.

(3) A Civil Appeal Statement is not required to be filed in (1) appeals or petitions in which any party is proceeding without the assistance of counsel or in which any party is incarcerated; (2) appeals from habeas corpus actions filed under 28 U.S.C. §§ 2241, 2254, and 2255; and (3) immigration appeals.

(4) Availability of Civil Appeal Statement forms.  The Civil Appeal Statement form is available on the Internet at www.ca11.uscourts.gov. Copies may also be obtained from the clerk of the court of appeals and from the clerk of each district court within the Eleventh Circuit.

(b)  Portions of Record to Accompany Completed Civil Appeal Statement.

(1)  Civil appeals from United States district courts and the United States Tax Court.  The appellant shall file with each completed Civil Appeal Statement the following portions of the district court or tax court record:

(i)  the judgment or order appealed from;

(ii) any other order or orders sought to be reviewed, including, in bankruptcy appeals, the order(s) of the bankruptcy court appealed to the district court;

(iii) any supporting opinion, findings of fact, and conclusions of law filed by the court;

(iv) the magistrate judge’s report and recommendation, when appealing a court order adopting same in whole or in part; and

(v)  findings and conclusions of an administrative law judge, when appealing a court order reviewing an administrative agency determination involving same.

(2) Review of administrative agency orders. The petitioner shall file with each completed Civil Appeal Statement the following portions of the agency record:

(i) the agency docket sheet, or index of documents comprising the record, if one exists;

(ii)  any order or orders sought to be reviewed; and

(iii)  any supporting opinion, findings of fact, and conclusions of law filed by the agency, board, commission, or officer.

(c) Mediation.

(1) An active or senior judge of the court of appeals, a panel of judges (either before or after oral argument), or the Kinnard Mediation Center, by appointment of the court, may direct counsel and parties in an appeal to participate in mediation conducted by the court’s circuit mediators. Mediations are official court proceedings and the Kinnard Mediation Center circuit mediators act on behalf of the court.  Counsel for any party may request mediation in an appeal in which a Civil Appeal Statement is required to be filed if he or she thinks it would be helpful. Such requests will not be disclosed by the Kinnard Mediation Center to opposing counsel without permission of the requesting party.  The purposes of the mediation are to explore the possibility of settlement of the dispute, to prevent unnecessary motions or delay by attempting to resolve any procedural problems in the appeal, and to identify and clarify issues presented in the appeal. Mediation sessions are held in person or by telephone.  Counsel must, except as waived by the mediator in advance of the mediation date, have the party available during the mediation. Should waiver of party availability be granted by the mediator, counsel must have the authority to respond to settlement proposals consistent with the party’s interests. The mediator may require the physical presence of the party at an in-person mediation or the telephone participation of the party in a telephone mediation.  For a governmental or other entity for which settlement decisions must be made collectively, the availability, presence, or participation requirement may be satisfied by a representative authorized to negotiate on behalf of that entity and to make recommendations to it concerning settlement.

(2)   A judge who participates in the mediation or becomes involved in the settlement discussions pursuant to this rule will not sit on a judicial panel that deals with that appeal.

(3) Communications made during the mediation and any subsequent communications related thereto shall be confidential. Such communications shall not be disclosed by any party or participant in the mediation in motions, briefs, or argument to the Eleventh Circuit Court of Appeals or to any court  or  adjudicative  body that  might  address  the  appeal’s  merits,  except  as  necessary  for enforcement of Rule 33-1 under paragraph (f)(2), nor shall such communications be disclosed to anyone not involved in the mediation or otherwise not entitled to be kept informed about the mediation by reason of a position or relationship with a party unless the written consent of each mediation participant is obtained.  Counsel’s motions, briefs, or argument to the court shall not contain any reference to the Kinnard Mediation Center.

(d)  Confidential Mediation Statement.  The court requires, except as waived by the circuit mediator, that counsel in appeals selected for mediation send a confidential mediation statement assessing the appeal to the Kinnard Mediation Center before the mediation. The Kinnard Mediation Center will not share the confidential mediation statement with the other side, and it will not become part of the court file.

(e)  Filing Deadlines.  The filing of a Civil Appeal Statement or the scheduling of mediation does not extend the time for ordering any necessary transcript (pursuant to 11th Cir. R. 10-1) or for filing briefs (pursuant to 11th Cir. R. 31-1).  Such time may be extended by a circuit mediator to comply with these rules if there is a substantial probability the appeal will settle and the extension will prevent the unnecessary expenditure of time and resources by counsel, the parties, and the court.

(f) Noncompliance Sanctions.

(1)  If the appellant or petitioner has not taken the action specified in paragraph (a) of this rule within the time specified, the appeal or petition may be dismissed by the clerk of the court of appeals after appropriate notice pursuant to 11th Cir. R. 42-1.

(2)  Upon failure of a party or attorney to comply with the provisions of this rule or the provisions of the court’s notice of mediation, the court may assess reasonable expenses caused by the failure, including attorney’s fees; assess all or a portion of the appellate costs; dismiss the appeal; or take such other appropriate action as the circumstances may warrant.

(g)  Use of Private Mediators.

(1) Upon agreement of all parties, a private mediator may be employed by the parties, at their expense, to mediate an appeal that has been selected for mediation by the Kinnard Mediation Center.

(2) Such private mediator (i) shall have been certified or registered as a mediator by either the State of Alabama, Florida, or Georgia for the preceding five years; (ii) shall have been admitted to practice law in either the State of Alabama, Florida, or Georgia for the preceding fifteen years and be currently in good standing; and (iii) shall be currently admitted to the bar of this court.

(3)  All persons while employed as private mediators shall follow the private mediator procedures as set forth by the Kinnard Mediation Center.

(4)  The provisions of this subsection (g) shall be in effect until discontinued by the Chief Circuit Mediator or by the court.

United States Court of Appeals for the Federal Circuit Appellate Mediation Program Guidelines (Effective December 6, 2013)

1. Introduction

On October 3, 2005, the United States Court of Appeals for the Federal Circuit established an appellate mediation program pursuant to Federal Rule of Appellate Procedure 33.

The program is administered by the Circuit Executive, through the Office of General Counsel. A three-judge committee monitors the program and makes recommendations to the Chief Judge. The program is periodically assessed by the court.

The purpose of the program is to help the parties achieve settlement. The mediation program provides a confidential, risk-free opportunity for parties to resolve their dispute with the help of an experienced volunteer neutral, third-party mediator, or a magistrate judge. Mediation, unlike arbitration where a decision that may be binding is issued, will result in a settlement only if all parties agree on that resolution.

2. Eligible Cases

All cases in which the parties are represented by counsel are eligible for the program.

3. Case Selection Process

Participation in the court’s mediation program is mandatory for all cases selected for participation in the program. The Circuit Executive, through the Office of General Counsel, contacts principal counsel in cases selected for mediation to determine whether the case is a good candidate for mediation and seeks the opinion of counsel regarding participation in the program. If at the outset it appears to the designated court officials that mediation will not be fruitful, then court mediation efforts cease.

Additionally, counsel may jointly request that a case be included in the mediation program. A Confidential Joint Request to Enter Mediation Program form is available on the court’s website. Such a request should be to:

Office of General Counsel, Mediation

United States Court of Appeals for the Federal Circuit

717 Madison Place, NW Washington, DC 20439

The Office of General Counsel may review the notice of appeal, the trial tribunal’s docket sheet, the decision of the trial tribunal, the court’s docketing statement, and briefs to aid in selecting cases for mediation. The docketing statement is a form to be completed by counsel. The form is included in the docketing packet sent to counsel by the Clerk of Court. All counsel must complete the form within 14 days of docketing. When the United States or its officer or agency is a party, all counsel must complete the form within 30 days of docketing. The docketing statement is not part of the formal mediation process, but assists the Office of General Counsel with the selection process. The docketing statement is filed using CM/ECF.

4. Mediators

The court has selected a roster of outside mediators, including magistrate judges and volunteer mediators. The court’s mediators include distinguished, experienced attorneys, and others with expertise in the substantive areas of the court’s jurisdiction, as well as expertise in mediating. The court invites more applicants to become volunteer mediators. The application is available on the Federal Circuit Bar Association’s website and the court’s websites. The candidates are encouraged to be members of the bar of the court, but are not required to be members.

Volunteer mediators and applicants to be volunteer mediators must not be in active practice. For purposes of these guidelines “not be in active practice” means that the applicant or volunteer mediator is not appearing, and will not appear while a member of the court’s mediation panel (i) as counsel for a party or amicus in any matter that would or could be appealed to this court, or (ii) as counsel for a party or amicus in any appeal to this court. Volunteer mediators are not paid for their services, but are reimbursed by the court for minor out-of-pocket expenses such as photocopying costs, telephone charges, facsimile charges, and transportation to the courthouse. Mediation proceedings may be held in the courthouse if desired. Reimbursement for reasonable travel and lodging expenses of the mediator is assumed by the litigants if the volunteer mediator must travel to conduct the mediation. No reimbursement is required or provided if the mediation is conducted by a magistrate judge.

The Circuit Executive, through the Office of General Counsel, selects a volunteer mediator from the court’s list, unless the parties jointly propose an alternative mediator. If the parties jointly propose a mediator not on the court’s list, then the parties must agree to pay any travel, lodging, and out-of-pocket expenses of the mediator, and the mediator must agree to serve pro bono. Parties are free, of course, to participate in mediation outside the court’s program under terms to which they agree, whether or not the case is selected for mediation under the court program.

If a volunteer mediator is affiliated with a law firm and that law firm represents or has represented a party to an appeal b e f o r e t h e c o u r t within the last 5 years, the volunteer mediator will not mediate any case involving that party. Before final selection of a volunteer mediator for an appeal, the Office of General Counsel will inquire about conflicts of interest. The mediator must not presently represent, or have represented within the last five years, either party or any amicus for any purpose, must disclose any past relationships that he or she had with counsel, counsels’ firms, and the parties, and must disclose any potential “issues” conflicts. Volunteer mediators are required to decline to participate in any cases in which there is a conflict of interest, in which they perceive a conflict, or in which a reasonable person would perceive a conflict.

5. Confidentiality

Confidentiality is ensured throughout the mediation process except as noted in these guidelines. The Circuit Executive and the Office of General Counsel staff members involved in the mediation program do not communicate with the judges of the court about the substance of mediation proceedings. During the program, however, the mediation committee from time to time has discussions with the Circuit Executive and the Office of General Counsel staff members with a view to revising the program while it is ongoing, as appropriate and necessary. Communications concerning statistical information and information needed to assess the program are not prohibited. All mediators must protect the confidentiality of the substance of all proceedings and are prohibited from complying with subpoenas or other requests for information about mediated cases except in response to a final court order requiring such disclosure. All communication with the court about mediation matters is between the mediator and the Circuit Executive or members of the Office of General Counsel staff.

The substance of mediation is confidential and may not be disclosed by any participants, except that the duty of non-disclosure does not cover disclosure or use in the course of litigation concerning enforceability of any agreements reached

through mediation, which may be separately addressed by agreement or otherwise under legal standards not addressed here. The fact that a case is in mediation is not confidential. For example, any motions for extensions of time that are filed because the parties are engaged in mediation are part of the public file. Section 7 sets forth the procedures for seeking extensions of time.

6. Mandatory Mediation Process

Mediation is a flexible process. The mediator is not bound by a defined formula or approach to mediating a case and the mediator conducts the mediation as he or she deems appropriate. Mediation ceases at any time the mediator concludes that further efforts will not be fruitful.

The purpose of mediation is a settlement of the case. This may include a global settlement. Under the program, the mediator is not asked to narrow the issues on appeal. To the extent that the parties agree to narrow the issues, that may be reflected in their briefs.

If the staff of the Office of General Counsel determines that mediation may be fruitful, then principal counsel must participate in any initial telephone conference that is ordered. If an initial telephone conference is ordered, then participation is mandatory. If the participants agree that a telephone conference is not necessary and that they wish to meet for a mediation session, then no telephone conference will be ordered. If, in the judgment of the mediator, a mediation session might be fruitful, then the court requires that participation in at least one session is mandatory.

The court requires that the principal attorney for e ac h pa rt y attend all sessions and that at the initial session a party representative with actual settlement authority also attend. “Actual settlement authority” does not simply mean sending a person allowed to accept or offer a m inimum or maximum dollar amount. Rather, the party representative should be a person who can make independent decisions and has the knowledge necessary to generate and consider creative solutions. These requirements may be modified or waived by the mediator if circumstances dictate. When the United States government is one of the parties, the requirement that a party representative with actual settlement authority attend any mediation session is waived because government settlement decisions must be made collectively and approved by the authorized representative of the Attorney General, as set forth in 28 C.F.R. Part 0, Subpart Y. A government attorney with authority to negotiate on behalf of the government and to make recommendations concerning settlement must participate in the mediation session.

7. Extensions of Time

It is contemplated that after a case is referred to a mediator, mediation should be completed in 90 days. At the outside, mediation should be completed within 150 days of the date of reference. Cases generally are selected before the first brief is filed. However, cases in which briefs have been filed may also be selected. While cases in mediation remain subject to the normal scheduling for briefs and oral argument by the Clerk of Court, counsel may file a motion for an extension of time. If the mediator believes that multiple mediation sessions are required, that the filing of a brief or the scheduling of oral argument will interfere with good faith settlement efforts, and that additional extensions of time are needed, then motions for additional extensions may be filed. Motions for extensions of time are referred to the Office of General Counsel. If a particular staff member of the Office of General Counsel spoke with counsel concerning mediation of a particular case, then a different staff member of the Office of General Counsel who was not involved in that mediation matter will handle any motion in that case. Any consent motion for an extension of time under this paragraph need not disclose that the extension is sought in order to facilitate mediation. The court does not favor extensions of time that exceed 150 days after the case was referred to a mediator. Usually, the extensions are for a shorter period of time.

The Circuit Executive and the Office of General Counsel will monitor the progress of any case directed to mediation and may require a status report from either the parties or the mediator involved.

8. The Conclusion of Mediation

The purpose of the mediation program is to help the parties achieve settlement. If settlement is reached, then the agreement must be in writing and binding on all parties. The appellant or the parties jointly must file a motion or stipulation of voluntary dismissal or other appropriate motion. If the case is not settled, then it remains on the docket and proceeds as if mediation had not been initiated.

If, as a result of mediation, a settlement is reached which includes a term concerning vacatur of a District Court or other trial forum ruling, the following notice must be included in the text (not as a footnote) in any motion in that trial forum for an indicative ruling:

As a result of a mediation conducted pursuant to the Mediation Program of the U.S. Court of Appeals for the Federal Circuit, a settlement of this case was reached which includes a term concerning vacatur of one or more rulings of the District Court. Pursuant to Rule 12.1 of the Federal

Rules of Appellate Procedure, this motion seeks an indicative ruling that the District Court will so vacate if the case is remanded by the Federal Circuit for such purpose. Neither the U.S. Court of Appeals for the Federal Circuit nor its Mediation Program takes a position as to whether the motion for vacatur should be granted.

In addition to the requirement that the above notice be included in any motion in the District Court for an indicative ruling, any remand order by the Federal Circuit will include the following statement:

In remanding this case to the District Court to consider the motion for vacatur, the Federal Circuit takes no position as to whether the District Court should grant the motion for vacatur.

9. Noncompliance Sanctions

Any party, counsel or outside mediator who fails to materially comply with any of the provisions of this document, including failing to cooperate with the Circuit Executive or the Office of General Counsel, may be subject to appropriate sanction by the court. Notwithstanding the confidentiality provisions of Paragraph 5, the court may be apprised by t h e Circuit Executive or the Office of General Counsel of the substance of a mediation only to the extent necessary to explain any recommendation for sanctions. Any judge ruling on such a recommendation shall be recused from hearing the case on the merits.

10. Evaluation

At the conclusion of the mediation process in an individual case, the mediator notifies the Circuit Executive’s mediation administrator of the resolution of the mediation. The Office of General Counsel thereafter sends a questionnaire to counsel and the mediator inviting their candid confidential responses, which are not provided to this court’s judges or others, about the effectiveness of the program. The questionnaire responses are summarized by the Office of General Counsel – without identification of any specific case – for purposes of evaluating the program, compiling statistics, etc. The summary is provided to the court for purposes of assessing the program, but it does not reveal any details about or names of specific cases.