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Understanding the Mediation Process

Is my case eligible?

Most civil cases where the parties have attorneys can join the Mediation Program.

Cases come to us in three ways:

How does the mediation process work?

Settlement Assessment Conference

In the first step of the mediation process, the attorneys for both sides take part in a confidential telephone settlement assessment conference with the circuit mediator to consider whether the case is a good candidate for mediation.

The call usually takes around 30 minutes.

During the call, counsel and the mediator:

  • Exchange information about the case

  • Talk about any earlier efforts to settle

  • Discuss options for mediation

  • Decide whether the parties want to engage in settlement work.

Mediation

If the parties agree to participate in the Mediation Program, the circuit mediator will work with them to develop an efficient and effective process for exploring settlement.

One of the highlights of the Mediation Program is the ability to design a process that best meets the needs of a particular case. One issue to be decided is whether mediation session(s) will be in person, by video, or on the phone.

Working with the circuit mediator, the parties will decide what issues need to be addressed in the mediation session.

These topics could include:

  • Legal issues and possible outcomes of the appellate process.

  • The practical needs of the parties.

  • Rebuilding relationships or joint problem solving.

These discussions can take place in a conference with all participants or in separate conversations with the mediator.

To help the parties negotiate, the mediator will:

  • Ask questions,

  • Facilitate communication,

  • Assist the parties to understand each other and help identify creative solutions.

The mediator will not take sides, render decisions, or offer legal advice.

Factors favoring settlement

Settlement is possible when the parties can reach terms that are preferable to continued litigation.

Factors that increase the likelihood of settlement include:

  • Speed: Avoiding the time required to brief, argue, and decide an appeal

  • Cost: Eliminating the expense of continued litigation

  • Certainty and control: Replacing the uncertainty of a judicial outcome with a negotiated resolution

  • Flexibility: Allowing for creative, tailored solutions that a court cannot provide

Conclusion of the mediation process

If the case settles, the circuit mediator will help ensure the parties file the proper paperwork to close the appeal.

If the case does not settle, it is released from the Mediation Program and the appeal moves forward.

Confidentiality

Maintaining the confidentiality of the parties’ negotiations is one of the cornerstones of the mediation process. See: Circuit Rule 33-1 (PDF). Ninth Circuit rules provide that any person “who participates in the Circuit Mediation Program must maintain the confidentiality of the settlement process.” Circuit Rule 33-1 (c) 4. This rule applies to all communications made during the mediation process, including telephone conferences and written communications. The Circuit Mediators do not disclose mediation communications to the judges.

FAQs

The Mediation Questionnaire

The Mediation Questionnaire (“MQ”) is a fillable form that provides information relevant to the suitability of the appeal for mediation. Appellants are required to file an MQ within 5 days of docketing the appeal. See Ninth Circuit Rules 3-4 and 15-2 . The only purpose of the MQ is to inform the mediation office about the appeal and its potential for settlement; counsel need not worry about preserving issues on appeal in the MQ.

Appellees may file an MQ but are not required to do so.

The Settlement Assessment Conference

After reviewing the Mediation Questionnaire and any other relevant information, the Circuit Mediators schedule most cases for a telephonic Settlement Assessment Conference (“Assessment Conference.”) The conference is intended to assess whether the case might benefit from settlement efforts and typically includes a discussion of the case’s history, counsel’s views on whether mediation would be appropriate, and the mediator’s explanation of possible settlement procedures. During the conference (or sometimes during a subsequent follow-up conference), counsel and the mediator will decide whether to include the case in the Mediation Program.

The court expects that counsel for each party that intends to file a brief in the appeal will participate in the conference. The attorney with the most direct relationship with the client is encouraged to participate. Co-counsel and other attorneys in the principal counsel’s firm may attend if their presence would be beneficial.

Yes. Attendance by counsel at the initial Assessment Conference is ordered by the court and is mandatory.

While clients are an essential part of the mediation process, the initial Assessment Conference is intended for counsel only. Depending upon the case, clients may participate in subsequent phone conferences and will always participate in in-person sessions.

The Mediation Program will reschedule the initial Assessment Conference if counsel has an unavoidable conflict. To reschedule the call, please follow the instructions in the Assessment Conference order. Ideally, counsel will contact opposing counsel first and will provide a list of alternate dates and times available to all counsel.

The call will be scheduled as a dial-in call; the instructions will be provided to counsel of record by email. If the order contains incorrect contact information, it is important that counsel correct this information immediately by contacting the person identified in the order. In addition, counsel should correct any information directly through ACMS.

The initial Assessment Conference typically lasts around 30 minutes. Subsequent telephone conferences can vary in length, depending upon the nature and scope of the discussions.

A mediation statement is not required for the initial Assessment Conference. If the case progresses further in the mediation process, the Circuit Mediator may request that counsel submit mediation statements.

The Circuit Mediator will have reviewed the Mediation Questionnaire, the Ninth Circuit docket, the lower court order from which the appeal stems, and any information counsel may have submitted confidentially. Counsel will have the opportunity to provide additional information and to explain their view of the case.

Last updated May 6, 2026