IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In Re:
Procedures to Govern Mediation of
Appeals from the United States
Bankruptcy Court for this District
ORDER
WHEREAS, this Court entered an Order dated July 23, 2004, regarding
procedures to govern mediation of all appeals from the Bankruptcy Court pursuant to
28 U.S.C. § 158;
WHEREAS, the Judges of this Court have determined that, in order to more
efficiently and expeditiously administer justice and assist the parties to amicably resolve
disputes which are the subject of appeals before the Court, it is appropriate to modify its
prior Order of July 23, 2004;
NOW THEREFORE, the //
ft._. i
of _ __....5'----{J---F--1.---'--'_ _ _ , 2012, it is hereby
ordered that the following mandatory mediation procedures shall apply to all appeals to
this Court from the Bankruptcy Court:
1. Appellate Mediation Panel
(a) In addition to the Magistrate Judges serving as mediators, the Judges
of the Court have designated a panel of mediators who meet the criteria contained in
1(b) (the "Appellate Mediation Panel" or "Panel"). Panel members serve at the pleasure
of the Judges of this Court.
(b) Persons seeking to be members of the Panel must submit a letter
requesting same. Said letter shall include the regular hourly rate charged by that
person for mediation services and be accompanied by a Curriculum Vitae which
demonstrates the person's experience, competence and acceptability to serve on the
Panel. Those present members of the Appellate Mediation Panel do not have to re
apply.
(c) Following selection, the Panel member's relationship as a mediator is
solely with the parties to the appeal, except that they are subject to certain reporting
requirements to the Judges, Magistrate Judges and Clerk of this Court.
(d) The Clerk of this Court shall continue to manage the Appellate
Mediation Panel. Mediations recommended for referral to the Panel by a Magistrate
Judge as described herein in paragraph 2 shall be conducted by members of the Panel.
2. Referral for Mediation
(a) All bankruptcy appeals shall be referred to a Magistrate Judge for
initial review and discussion with counselor the parties to determine the
appropriateness of mediation for the case, pursuant to 28 U.S.C § 636 (b).
(b) If a Magistrate Judge determines that mediation is appropriate, the
Magistrate Judge shall issue an order either retaining the matter for mediation or
recommending to the assigned Judge that the matter should be referred to a Panel
member.
i. Deferral of Briefing: All briefing in connection with the appeal
and all motion practice on appeal shall be deferred during the pendency of mediation
unless the Court determines otherwise. A referral to mediation, however, shall not
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defer or extend the time for ordering any necessary transcripts.
ii. If mediation is determined not to be appropriate by the
Magistrate Judge, the assigned Judge will issue an order withdrawing the matter from
mediation and the case will proceed through the appellate process.
(c) Mediation Referred to a Magistrate Judge: Referral for mediation to a
Magistrate Judge will proceed in the usual manner as mediation for other matters
occurring in this Court. In addition to any other materials requested by the Magistrate
Judge, joint exhibits for the mediation statements shall include any judgment or order
on appeal and any opinion or memorandum issued by the Bankruptcy Court. At the
conclusion of the mediation process, if settlement is not reached, the Magistrate Judge
will issue an order recommending the matter be withdrawn from mediation, and the
case will proceed through the appellate process.
(d) Mediation Referred to the Panel: Any referrals to the Panel shall
proceed as follows:
i. After notification, the Clerk will assign the matter to a Panel
member on a rotating basis.
ii. The Panel member shall have seven (7) days from the time of
notification by the Clerk to accept or decline the assignment as mediator.
iii. The Clerk will provide the Panel mediator with a copy of the
judgment or order on appeal, any opinions or memoranda issued by the Bankruptcy
Court, any relevant motions and all statements by the parties of the issues to be
presented on appeal.
iv. Within five (5) days of accepting the mediation assignment, the
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Panel mediator shall contact the parties to notify them of his/her appointment and to set
up a conference call to establish a schedule for mediation.
v. By the date set by the Panel mediator, but no later than forty
five (45) days after notification by the Clerk of the appointment, each counselor party
shall prepare and submit an original and one (1) copy to the Panel mediator a
confidential position paper, providing counsel's or the party's views on the key facts and
legal issues of the case, the primary factors and issues relating to settlement, a
statement of the motions filed in this Court and their status, and a candid discussion of
the party's position on settlement. Page limitations on the submissions may be
determined by the Panel mediator. The position papers shall be submitted directly to
the Panel mediator and, unless otherwise agreed by the Panel mediator and the
parties, shall not be served on opposing counselor party. The parties' respective
positions on settlement shall remain confidential and shall be shared only with the
Panel mediator. Position papers and other documents prepared for mediation are
confidential and shall not be filed with the Clerk nor become part of the record of the
case.
vi. Unless otherwise agreed by the Panel mediator and the parties,
within fourteen (14) days after receipt of the position papers, the Panel mediator will
notify and confirm with counselor the parties the time, date and place of the mediation
session, including whether it will be conducted in person. Within seven (7) days after
confirmation of the mediation date, the Panel mediator shall file with the Clerk, with a
copy to the Magistrate Judge, a notification as to the date for mediation.
vii. Unless the Panel mediator directs otherwise, mediation
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sessions must be attended in person by senior counsel for each party responsible for
the appeal and by the party/parties and/or decisionmaker(s) of the parties, who must
have full authority to act on behalf of the parties, including the authority to negotiate a
resolution of the matter and to respond to developments during the mediation process.
Full authority means those participants on behalf of a party who are able to make
independent decisions and have a knowledge or understanding of the dispute and/or
the business objectives/operations of their company to generate and consider solutions
and/or to be able to address the negotiation dynamics in mediation. It is not just
settlement authority, that is, to make an offer or to accept an amount.
viii. If settlement is not reached during the initial mediation session,
but the Panel mediator believes further mediation sessions or discussion would be
productive, the mediator may conduct additional mediation sessions in person or
telephonically. Within seven (7) days of the initial mediation session, the Panel
mediator shall file a notification with the Clerk, with a copy to the Magistrate Judge,
advising whether the mediation process is concluded and if settlement was reached. If
the mediation process is continuing, the Panel mediator shall file a notification within
the time noted herein with the Clerk, with a copy to the Magistrate Judge, adVising of
the date(s) for any further mediation sessions.
Within five (5) days of the final mediation session, the Panel mediator shall file a
notification with the Clerk, with a copy to the Magistrate Judge, advising that mediation
is concluded and whether settlement was reached. If settlement was not reached, the
Magistrate Judge will issue an order recommending the matter be withdrawn from
mediation, and the case will proceed through the appellate process.
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ix. Mediation proceedings are confidential. All participants in
mediation, including the Panel mediator, are prohibited from disclosing statements
made or information developed during the mediation process. Disclosures by counsel
or other persons attending mediation are limited to clients. principals or co-counsel only
upon receiving proper assurances that the recipients will honor the confidentiality of the
information.
x. Fees of Panel Mediators: One-half of the Panel mediator's fees
shall be paid by the appellant(s) and one-half of such fees shall be paid by the
appellee(s). The Panel mediator may request and shall receive an advance payment
from each party which shall be paid prior to the beginning of mediation.
3. Referral of Pending Appeals to Mediation
At any time during an appeal pending as of the date of this order. the
assigned Judge may refer the appeal for mediation. The procedures set forth herein
are applicable to matters referred for mediation under this paragraph.
4. Confidentiality
In addition to any provision herein or any order by a Magistrate Judge
addressing confidentiality, use of any information obtained as a result of the mediation
process as a basis for any motion or argument to any court is prohibited. Mediation
proceedings shall be considered compromise negotiations under FED. R. EVID. 408.
Notwithstanding the foregoing. the bare fact that a settlement has or has not been
reached as a result of mediation shall not be considered confidential.
5. Settlement
(a) No party shall be bound by statements or actions during mediation
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unless settlement is reached.
(b) If settlement is reached, the agreement shall be reduced to writing
and shall be binding upon all parties to the agreement.
(c) A stipulation of dismissal of the appeal must be filed by counselor the
parties within thirty (30) days after settlement is reached.
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