Mediation in Federal Court Kevin F. McDonald United States Magistrate Judge

Local Civ. Rule 16.04(A) (D.S.C.): Mediation is an informal process in which a third-party mediator facilitates settlement discussions between the parties. Any settlement is voluntary. In the absence of settlement, the parties lose none of their rights to trial by judge or jury.

The Alternative Dispute Resolution Act - 28 U.S.C. §§ Requires all district courts to implement ADR Programs District of South Carolina: Mediation addressed in Local Civ. Rules

Local Civ. Rule Certification Requirements for Mediators: - Lawyer in good standing with at least five years experience - No professional conduct violations in the last five years - Mediation training

Cases subject to mediation in federal court - Scheduling order in place? Local Rule Scheduling Orders generally will not be entered in any action listed in Fed. R. Civ. P. 26(a)(1)(B). - Comparing Scheduling Orders - Stand Alone Orders to Mediate

Local Civ. Rule Discussing mediation with client(s) and opposing counsel Deadlines - Local Rule 16.06(C) - Unless otherwise ordered, the parties must select a mediator at least 21 days prior to the deadline for mediation. - Local Rule 16.07(A) - Unless otherwise ordered, the initial mediation conference shall be held within 28 days of the agreement upon or order appointing a mediator. - Unless otherwise ordered, the mediation shall be completed within 28 days from the initial mediation conference. Reporting requirements

Conducting Mediation Local Rule 16.10(B) - Duties of the Mediator The mediator shall define and describe the following to the parties at the beginning of the conference: (1) The process of mediation; (2) The difference between mediation and other forms of conflict resolution; (3) The fact that the mediation conference is not a trial; the mediator is not a judge, jury, or arbitrator; and the parties retain the right to trial if they don’t reach a settlement; (4) The inadmissibility of conduct and statements as evidence in any arbitral, judicial, or other proceeding; (5) The circumstances under which the mediator may meet alone with either of the parties or with any other person; (6) Whether and under what conditions communications with the mediator will be held in confidence during the mediation conference; (7) The duties and responsibilities of the mediators and the parties; (8) The fact that any agreement will be reached by mutual consent of the parties.

Benefits of Mediation Contain costs Client control and certainty on outcome Creative resolution Closure Local Rule (C) - Confidential Communications

How To Botch A Mediation Bring Someone Without Full Settlement Authority Clash With Opposing Counsel Put Forth Arbitrary Money Demands Leave It To The Mediator To Do Your Job