IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
)
IN RE: MANDATORY MEDIATION ) Administrative Order No. 301
PROGRAM )
)
MANDATORY MEDIATION PLAN
SECTION 1 - INTRODUCTION AND AUTHORITY
1.1. TITLE
This Mandatory Mediation Plan (“Plan”) will serve as the guidelines for the Court’s
Mandatory Mediation Program (“Program”).
1.2. PURPOSE AND SCOPE
A. Purpose. The United States District Court for the Southern District of Illinois has
adopted this Plan. The Program is designed to provide a more efficient and less
expensive alternative to continuing litigation, without impairing the quality of justice
or the right to trial.
B. Scope. This Plan applies to pending civil actions, as well as newly filed actions, except
as indicated herein.
C. Magistrate Judge Consent Cases. Consistent with Local Rule of Civil Procedure 72.2,
in cases where the parties have consented to jurisdiction by a Magistrate Judge under
28 U.S.C. § 636, the Magistrate Judge shall have the same powers as a District Court
Judge.
D. Plan Administration.
1. Information and Guidelines. Information about the Program and any
other Alternative Dispute Resolution (“ADR”) programs that may be adopted
by the Court are available at https://www.ilsd.uscourts.gov/mandatory-
mediation-program and at the Court Clerk’s office.
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2. Inquiries. All inquiries about the Program and any other ADR programs that
may be adopted by the Court should be directed to:
[email protected].
SECTION 2 – OVERVIEW
2.1. REFERRAL INTO THE MANDATORY MEDIATION PROGRAM
A. New Cases.
1. Automatic Referral of Non-Exempt Civil Cases. Promptly upon assigning a
presumptive trial date, the assigned Judge or Magistrate Judge (collectively,
“Presiding Judge”) shall enter a Mandatory Mediation Referral Order advising
the parties that the case has been identified as a Non-Exempt Civil case subject
to automatic referral into the Program.
2. Exempt Civil Cases. The following categories of actions are exempt from
automatic referral:
• Habeas corpus and extraordinary writs;
• Applications to vacate a sentence;
• Prisoner civil rights cases;1
• Social security appeals;
• Bankruptcy appeals;
• IRS summons enforcement actions;
• Government foreclosure actions;
• Civil asset forfeiture actions;
• Any action to enforce a government summons, subpoena, or civil investigative
demand; and
• Non-prisoner pro se actions.2
3. Non-Prisoner Pro Se Cases. If the Presiding Judge determines that mediation is
appropriate, he or she may enter a Pro Se Mandatory Mediation Referral Order,
referring the case into the Program. The timing of the referral is within the
discretion of the Presiding Judge. The Presiding Judge may, in his or her
discretion, attempt to locate pro bono counsel to represent the pro se party or
1 Prisoner civil rights cases will be governed by a separate Mediation Plan. Nonetheless, the
Presiding Judge has the authority to refer any prisoner civil rights case to this Mandatory
Mediation Program if determined to be appropriate in a particular case.
2 As set forth in § 2.1(A)(3), non-prisoner pro se actions may be referred into the Mandatory
Mediation Program in the discretion of the Presiding Judge.
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parties at the mediation (“Special Mediation Counsel”).3 Program referrals in
non-prisoner pro se cases may be withdrawn if the Court cannot recruit Special
Mediation Counsel.
4. Purported Class Actions. Purported class actions in Non-Exempt Civil Cases are
not subject to automatic referral into the Program. Such actions will be referred
into the Program in the discretion of the Presiding Judge. If the Presiding Judge
determines that mediation is appropriate, he or she will enter a Discretionary
Mandatory Mediation Referral Order referring the case into the Program. The
order shall specify a date on which the Mandatory Mediation Session and all
Mandatory Mediation Proceedings are to be completed. The timing of the referral
is within the discretion of the Presiding Judge.
B. Pending Cases. The Presiding Judge on any pending civil case may, sua sponte or
with a status conference, refer the case into the Program by entering a Discretionary
Mandatory Mediation Referral Order. The order shall specify a date on which the
Mandatory Mediation Session and all Mandatory Mediation Proceedings are to be
completed.
C. Stipulation. A case may be referred into the Program by stipulation of all parties.
Stipulations shall be filed on the docket. If the Presiding Judge concludes that the
stipulation is acceptable, he or she will refer the case into the Program by entering a
Discretionary Mandatory Mediation Referral Order. The order shall specify a date on
which the Mandatory Mediation Session and all Mandatory Mediation Proceedings
are to be completed. Stipulations are presumed acceptable unless the Presiding Judge
determines that the interests of justice are not served.
2.2. RELIEF FROM ADR REFERRAL
A. Opt-Out Motions. Motions to opt out of the Program shall be filed on the Court’s
docket using the event “Motion to Opt Out of Mandatory Mediation.” Motions to opt
out of the Program should be filed prior to the Rule 16 conference so that they may be
addressed at the conference. If no Rule 16 conference is held, motions to opt out of the
Program shall be filed in the timeframe prescribed by the Presiding Judge.
B. Criteria. Motions to opt out shall be granted only for “good cause” shown.
Inconvenience, travel costs, attorney fees, or other costs shall not constitute “good
cause.” Each judge may identify criteria that he or she finds to establish good cause in
a particular case. A party seeking relief from the Mandatory Mediation Program must
set forth specific and articulable reasons why mandatory mediation has no reasonable
3Section 5 of this Plan contains additional information and guidelines regarding Special
Mediation Counsel.
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chance of being productive and identify when the case may be in a better posture to
explore settlement.
C. Judicial Initiative. The Presiding Judge may, sua sponte, exempt any case from the
Program.
2.3. VIOLATIONS OF THE MANDATORY MEDIATION PROGRAM
A. Report of Violation. A mediator or party may report to the Presiding Judge any
failure to attend a mediation conference, to substantially comply with the Mandatory
Mediation Referral Order, or to otherwise participate in mediation proceedings in
good faith. The mediator’s report, and an accompanying declaration, must be sent to
all parties.
B. Proceedings and Sanctions in Response to Report of Violation. Upon receipt of such
a report, the Court may take whatever actions it deems appropriate, including issuing
an order to show cause why sanctions should not be imposed. Show cause hearings
shall be conducted on the record, but under seal.
SECTION 3 – MANDATORY MEDIATION
3.1. TIMING
A. Overview. The Presiding Judge will determine when mediation must be completed.
The Program contemplates that mediation will be conducted at a point in the
litigation where the parties have had the opportunity to evaluate the strengths and
weaknesses of the case, but before incurring the time and expense of filing and
responding to dispositive motions. The Program also was designed with an
understanding that each case is unique. In some cases, the parties may have enough
information to fully evaluate the case after the exchange of written discovery. In
others, mediation may not be appropriate until much later. As a result, the Program
contemplates that parties will complete the requisite two-hour Mandatory Mediation
Session no later than 30 days before the discovery cutoff and that all Mandatory
Mediation Proceedings will be completed no later than 15 days after the discovery
deadline.
B. Scheduling. The referral of a case to the Program does not delay or defer other dates
established in the Scheduling Order and has no effect on the scheduled progress of
the case toward trial. If the parties and mediator agree that extensions of the
mediation process are appropriate, the parties, not the mediator, should notify the
Court. However, any extensions of the mediation process should not impact the
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original Scheduling Order in the case. Notification of extensions should be submitted
via email to the Presiding Judge.
C. Non-Exempt Civil Cases.
1. Duty to Confer. Prior to the Rule 16 scheduling conference, counsel shall confer
about the Program as part of their discussion of “the possibilities for a prompt
settlement or resolution of the case” pursuant to Federal Rule of Civil Procedure
26(f). The parties shall attempt to agree upon a mediator and, at the scheduling
conference, shall be prepared to report on the outcome of their discussion
pursuant to Rule 16.
2. Deadlines. Unless otherwise ordered, the following deadlines shall apply:
a. Mediator Selection. The parties shall have 28 days from the Rule 16
Conference or, in the case of a discretionary referral to the Program, 28 days
from entry of the Discretionary Mandatory Mediation Referral Order, in
which to select a mediator and file a Stipulation Selecting Mediator on the
Court’s docket using the event “Stipulation Selecting Mediator.”
b. Completion of Mandatory Mediation Session. The requisite two-hour
Mandatory Mediation Session shall be completed no later than 30 days
before the discovery deadline.
c. Completion of Mandatory Mediation Proceedings. All Mandatory
Mediation Proceedings, including additional mediation sessions, if any,
shall be completed no later than 15 days after the discovery deadline.
3. Initial Scheduling Order. The Court will file the Initial Scheduling Order
immediately following the Rule 16 scheduling conference. The Initial Scheduling
Order will specify a date certain for selecting a mediator, completion of the
Mandatory Mediation Session, and completion of all Mandatory Mediation
Proceedings. All deadlines shall conform with § 3.1.C.2 unless otherwise ordered
by the Court.
D. Non-Prisoner Pro Se Cases. If the Presiding Judge determines that mediation is
appropriate, he or she will enter a Pro Se Mandatory Mediation Referral Order
referring the case into the Program for a single Mandatory Mediation Session.
Objections, if any, must be filed within 10 days of the entry of the Mandatory
Mediation Referral Order. If there are no objections, or if the Presiding Judge
overrules any objections, the Court will issue an order appointing a mediator and
setting a date or timeframe in which the Mandatory Mediation Session shall be
completed. The Presiding Judge may, in his or her discretion, appoint Special
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Mediation Counsel (if available). If Special Mediation Counsel is appointed, he or she
shall promptly file a Notice of Limited Appearance of Special Mediation Counsel
using the event “Notice of Limited Appearance of Special Mediation Counsel.”
3.2. SELECTION OF MEDIATOR
A. Mandatory Mediation Panel List. The Court shall maintain a list of Court-approved
mediators for the Program (“Mediation Panel List”). Each mediator shall provide to
the Court information on his or her area(s) of expertise and compensation rates.
B. Private Mediators. The parties may select a mediator other than from the Court’s
Mediation Panel List only upon approval of the Presiding Judge upon a showing of
good cause. Any request to use a mediator other than from the Court’s Mediation
Panel List should be filed on the Court’s docket using the event “Motion to Appoint
Private Mediator.” Such motions must be supported by an Attestation Regarding
Private Mediator, which should be attached as an exhibit to the motion. When a
mediator is selected from other than the Court’s Mediation Panel List, the parties will
be responsible for filing the mediation report with the Court.
C. Selection.
1. Non-Exempt Civil Cases.
a. Once the parties have stipulated or been referred to mediation, they shall
have 28 days from the Rule 16 Conference in which to select a mediator,
confirm the mediator’s availability including a conflict check, and
electronically file a Stipulation Selecting Mediator on the Court’s docket
using the event “Stipulation Selecting Mediator.” Counsel shall notify the
mediator of their selection as mediator and the mediation deadline.
b. If the parties fail to agree upon a mediator within the 28-day period, the
parties shall notify the Court by submitting an e-mail to:
[email protected]. The subject line of the e-mail shall include
the case name and number and the name of the Presiding Judge. The e-mail
shall state that parties have failed to agree upon a mediator. The Court shall
then select a mediator for the case from the Mediation Panel List and shall
issue an Order notifying the parties of the mediator’s identity.
c. Should a mediator assigned by the Court require documents filed within
the assigned case, he or she shall contact the Clerk’s Office for assistance.
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2. Non-Prisoner Pro Se Cases. In Non-Prisoner pro se cases, the Court will appoint
a mediator. The Court will notify the mediator of his or her selection as mediator
and the mediation deadline.
3.3. SCHEDULING AND LOCATION
A. Scheduling.
1. Non-Exempt Civil Cases. Promptly upon being selected, the mediator shall
conduct a conference via telephone or video, jointly or separately, with counsel, to
fix the date and place of the requisite two-hour mediation session.
2. Non-Prisoner Pro Se Cases. Promptly upon being selected, the mediator shall
conduct a conference via telephone or video, jointly or separately, with counsel for
represented parties and Special Mediation Counsel, to fix the date and place of the
mediation session. If Special Mediation Counsel has not been appointed, the
conference shall be conducted with counsel for represented parties and the pro se
party.
B. Location. Mediation sessions shall be held in the mediator’s office, unless otherwise
agreed. Space may be available at the U.S. Courthouse upon request through the Clerk
of Court. All such inquiries should be directed to:
[email protected]. The
mediator may, in his or her discretion, allow one or more attendees to participate
remotely or conduct the entire mediation remotely.
3.4. MEDIATION MEMORANDUM
A. Time for Submission. No later than ten days before the scheduled mediation session,
each party shall submit to the mediator a written “Mediation Memorandum.”
B. Prohibition Against Filing. Mediation memoranda shall not be filed, and the
Presiding Judge shall not have access to them. They shall be subject to the
confidentiality of the mediation process and treated as a document prepared “for
settlement purposes only.”
C. Content of Mediation Memoranda. The content of Mediation Memoranda shall be
determined by the mediator.
3.5. COMMUNICATIONS WITH THE MEDIATOR
After receiving Mediation Memoranda pursuant to Section 3.4, the mediator may request
additional information from any party or participant. The mediator, at his or her
discretion, may also discuss the case in confidence and ex parte with counsel, parties,
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and/or representatives. The mediator shall not disclose any confidential communication,
including the Mediation Memoranda and submissions, without permission.
3.6. ATTENDANCE AND PARTICIPATION
A. Parties. All named parties and their counsel are required to attend the mediation
session(s). The decision as to whether attendance must be in-person or may be via
telephone or video conference shall be solely within the discretion of the mediator.
1. Corporation or Other Entity. A corporation or other entity satisfies the attendance
requirement if represented by one or more persons (other than outside counsel)
who have authority to settle and are knowledgeable about the facts and
circumstances of the case and the claims being made.
2. Government Entity. A unit or agency of government satisfies the attendance
requirement if represented by one or more persons who have, to the greatest extent
feasible, authority to settle, and who are knowledgeable about the facts of the case,
the agency’s or unit’s position, and the procedures and policies under which the
agency or unit decides whether to enter into proposed settlements. If the action is
brought by the government on behalf of one or more individuals, at least one such
individual shall also attend.
B. Counsel. Each party shall be accompanied at the mediation session by the attorney
who will be primarily responsible for handling the trial of the matter and/or is most
familiar with the matter at that stage of the proceeding. Pro se parties shall be
accompanied at the mediation session by Special Mediation Counsel if appointed.
C. Proper Representative(s)/Insurers. Representative(s) of a party, including an insurer,
are required to attend if their agreement is necessary to achieve a settlement. The
representative(s) must have authority to settle and be knowledgeable about the facts
and circumstances of the case and the claims being made. If it appears to the Mediator
that a case is not being reasonably evaluated by the representative present, the
Mediator may meet privately with one or both sides to determine the analysis that has
gone into the evaluation of the case, including the names and the authority of the
individual involved in the analysis. The Mediator may request identified individuals
or designate a level of authority to be present if subsequent Program sessions are
scheduled.
D. Other Attendees. The mediator may require the attendance of any other individual
who appears reasonably necessary for the advancement of communication and
resolution between the parties.
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E. Good Faith Participation in the Process. All parties and counsel shall participate in
mediation in good faith. Failure to do so shall be sanctionable by the Court.
3.7. THE MEDIATION SESSION
The mediator shall determine how he or she intends to conduct the mediation process.
The mediator may inform the parties of the process at the beginning of the mediation, in
a pre-mediation telephone conference with parties, or through a set of standing
mediation procedures. Any communications to the mediator during a “caucus” shall not
be disclosed by the mediator to any other party without permission. The mediation
session shall be conducted with civility.
3.8. CONFIDENTIALITY IN MEDIATION
A. Mediation is confidential and private. No participant in the mediation process or any
portion thereof may communicate confidential information acquired during
mediation without the consent of the disclosing party. There shall be no stenographic
or electronic recording, e.g., audio or visual, of the mediation process.
B. All written and oral communications made in connection with or during the
mediation session, any positions taken and any views of the merits of the case formed
by any participant, including parties, counsel, and the mediator, are privileged and
confidential.
C. There shall be no communication between the Presiding Judge and the mediator
regarding a case referred for mediation.
D. No communication made in connection with or during any mediation session may be
disclosed or used for any purpose including impeachment in any pending or future
proceeding in the Court.
E. The confidentiality of information disclosed during mediation does not prohibit or
limit:
1. the Court from collecting information relative to evaluation of the Program;
2. the mediator from reporting a failure to participate in the mandatory mediation
process in good faith, except that the mediator shall not disclose the content of
confidential communications;
3. the mediator from filing “mediation reports” pursuant to § 3.10;
4. a party from seeking to enforce a settlement agreement;
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5. a party from disclosing the final resolution and settlement reached unless, in the
interest of justice, the parties have agreed to the confidentiality of same; or
6. a participant from making such disclosures as are required by law.
3.9. MANDATORY MEDIATION SESSION AND CONTINUED MEDIATION
SESSIONS
A. Non-Exempt Civil Actions.
1. Mandatory Mediation Session. The Mandatory Mediation Session shall be
completed no later than 30 days before the discovery deadline. The minimum
duration for Mandatory Mediation Session is two hours, but the parties are
encouraged to spend additional time unless the mediator agrees that additional
time would not be productive.
2. Continued Mediation Sessions. At the close of the Mandatory Mediation Session,
the mediator and the parties shall jointly determine whether it would be
appropriate to schedule additional mediation. Follow-up could include, without
limitation, written reports, telephonic discussions, negotiations between the
parties with the mediator available for assistance, or further mediation sessions.
3. Scheduling Subsequent Mediation Sessions. If the Mandatory Mediation Session
is not successful in resolving the case, but the parties agree that an additional
session(s) would be helpful, the mediator will, in consultation with the parties,
schedule subsequent sessions to explore and evaluate the possibility of reaching a
mutually acceptable resolution. Additional sessions must be conducted within the
date for completion of all Mandatory Mediation Proceedings set forth in the
Court’s Initial Scheduling Order (no later than 15 days after the deadline for
completion of discovery).
B. Non-Prisoner Pro Se Cases.
1. Mediation Session. Non-Prisoner pro se cases will be scheduled for a single
Mandatory Mediation Session. The Presiding Judge will set a date or timeframe in
which the mediation session should be held.
2. Minimum Duration. The minimum duration for Mandatory Mediation Session is
two hours, but the parties are encouraged to spend additional time unless the
mediator agrees that additional time would not be productive.
3. Session Termination. The mediation session shall be terminated after six hours of
mediation, unless the parties and the mediator agree to continue the session.
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4. Termination of Special Mediation Counsel. If the mediation session does not
result in settlement, at the conclusion of mediation procedures, the Court shall
issue an order relieving Special Mediation Counsel, if any, of further
representation duties and terminating the attorney-client relationship.
5. Continued Mediation Sessions. There shall be no additional mediation sessions
except by order of the Court upon a showing of good cause. Additional mediation
sessions, if any, must be conducted within the date for completion of all
Mandatory Mediation Proceedings set forth in the Court’s Initial Scheduling
Order (no later than 15 days after the deadline for completion of discovery).
3.10. MEDIATION REPORTS
A. Within seven days after the close of each mediation session, the mediator shall report
to the Court by electronically filing a Report of Mandatory Mediation on the Court’s
docket using the event “Report of Mandatory Mediation.” The report will advise the
Court of the date the session was held, whether the case settled in whole or in part,
and whether any follow up is scheduled.
B. Congress has mandated that district courts’ ADR programs be evaluated. Within
seven days after the final mediation session has ended, the mediator and attorneys for
the parties shall complete the survey regarding the Program emailed to them by the
Clerk of Court. The information gathered during the survey period at the conclusion
of each mediation will be used to study the effectiveness of this program. The sources
of specific information will not be disclosed to the Presiding Judge or in any report.
SECTION 4 – MEDIATORS
4.1. MEDIATOR PANEL
The Court shall select a panel of mediators to serve on the Program (“Panel”). Interested
applicants must complete and submit the Mediator Application. Approved applicants
will be contacted via email and directed to complete and submit the Mediator Oath or
Affirmation prescribed in 28 U.S.C. § 453. The Mediator Application and Oath or
Affirmation shall be submitted via email to
[email protected]. After
submission of the Mediator Oath or Affirmation, approved applicants will receive
instruction regarding completing their online mediator profile for inclusion in the Court’s
Mediation Panel List. The Chief Judge shall certify as many mediators as determined to
be necessary under this Plan for admission to the Panel. The Chief Judge may, in his or
her discretion, appoint other Judicial Officers of this District to assist in reviewing the
Mediator Applications and certifying the mediators. Membership on the Panel is a
privilege, not a right. The Court shall have the authority to establish qualifications for
mediators, monitor their performance, and withdraw any mediator from the Panel.
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4.2. PRO BONO SERVICE REQUIREMENT
A. Duty to Accept Assignments. Every member of the Panel shall be available for
assignment by the Court to provide mediation services pro bono. Assignments shall
be made in such a manner that no member of the Panel shall be required to accept
more than one pro bono mediation assignment during any twelve-month period. The
minimum duration for a pro bono mediation session shall be two hours and, absent
agreement of the parties and the mediator, shall not exceed six hours.
B. Relief from Assignment.
1. A mediator may apply to be relieved of an order of assignment. A mediator will
be relieved of an order of assignment if a conflict of interest precludes the mediator
from acting as a mediator in the case. A mediator may be relieved of an order of
assignment on such other grounds as the Presiding Judge finds adequate.
2. A request to be relieved from an order of assignment shall be made promptly after
the mediator becomes aware of the existence of such grounds. Any request for
relief from an order of assignment shall be electronically filed in CM/ECF using
the event “Application for Relief from Mediator Assignment.” Mediators who are
not admitted to practice in the Southern District of Illinois and/or who do not have
the ability to file on the Court’s electronic docketing system shall email the
Application for Relief from Assignment to
[email protected].
C. Removal from the Panel.
1. A mediator who is not relieved of an assignment but still refuses to provide pro
bono mediation services in the assigned case shall, on order of the Court, be
removed from the Panel for two years.
2. A mediator who is relieved of an order of assignment on two or more occasions
during any twelve-month period shall be referred to the Chief Judge to assess
whether the mediator’s continued participation in the Panel is appropriate. If it is
determined that the mediator is unable to comply with the duty to accept pro bono
assignments, he or she, on order of the Chief Judge, shall be removed from the
Panel for two years.
3. A mediator removed from the Panel must reapply for admission and will only be
admitted upon the approval of the Chief Judge. A mediator securing readmission
to the Panel will be assigned a pro bono mediation case at the earliest opportunity.
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4.3. QUALIFICATIONS OF MEDIATORS
A. Requisite Skills. To effectively assist ADR participants and the Court, members of
the Panel must:
1. Be knowledgeable about federal civil litigation.
2. Have strong mediation process skills and the temperament to listen effectively and
facilitate communication between all participants and across “party” lines.
3. Exhibit strong problem-solving skills and the ability to generate meaningful
options to assist parties and other participants with settlement negotiations.
B. Who May Qualify. An individual may be admitted to the Panel at the discretion of
the Chief Judge, or any other Judicial Officer designated to assist in the review and
certification of Mediator Applications, if:
1. He or she has been a member of the bar of the highest court of a state or the District
of Columbia for a minimum of 7 years;
2. He or she has been determined by the Chief Judge to be competent to perform the
duties of a mediator; and
3. He or she has not demonstrated any trait or behavior that is reasonably believed
by the Chief Judge to be contrary to the effective and efficient management of the
Program.
C. Non-Attorneys. Non-attorneys may apply provided they are professional mediators
who would otherwise qualify as a special master or they are professionals whom the
Court has determined to be competent to perform the duties of the mediator.
D. Training. Although training is not required for admission on the panel, the Court may
periodically direct that all panel members attend mediation training. The Court may
also, on a case-by-case basis, require new panel members to attend training prior to
admission to the panel.
E. Oath. All persons serving as mediators shall take the oath or affirmation prescribed
in 28 U.S.C. § 453.
F. Mediators not Admitted in the Southern District of Illinois. Mediators who are not
admitted to practice in the Southern District of Illinois and/or who do not have the
ability to file reports on the Court’s electronic docketing system shall email the
required mediation reports to
[email protected]. If the mediator does not
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file the required report, then the parties will be responsible for filing the report as set
forth in § 3.10 of the Plan.
G. Disqualification and Unavailability of Mediators.
1. Disqualification. A mediator may be disqualified for bias or prejudice, pursuant
to 28 U.S.C. § 144. A mediator who discovers a circumstance requiring
disqualification shall immediately notify all counsel, unrepresented parties, and
the Court. A mediator shall disqualify himself or herself in any case in which a
justice, judge, or magistrate judge would be disqualified pursuant to 28 U.S.C.
§ 455, subject to the waiver provision of 42 U.S.C. § 455(e).
2. Objections to Mediator Selected by Court. Prior to the issuance of an Order
designating a mediator, the Court will contact the selected mediator who will
review the case for possible conflicts. Following issuance of the Court’s Order, a
party who believes a disqualifying conflict exists should first confer with the
mediator. If the matter is not resolved by, for example, waiver or recusal, a motion
and supporting affidavit shall be filed with the Court with the Presiding Judge
within 14 days from the Court’s Order, stating the facts and the reasons for the
belief that a disqualifying conflict, bias, or prejudice exists. In the event a conflict
or other objection does not become apparent until after the Mandatory Mediation
process has commenced, a motion for disqualification must be made at the earliest
opportunity or the objection is waived.
3. Unavailability. A mediator who later becomes unable to serve within the time
period set forth in the Court’s Scheduling or Referral Order shall notify all counsel,
unrepresented parties, and the Court.
4. Selection of New Mediator. In the event of disqualification or unavailability, a
new mediator shall be selected by agreement of the parties or, in the event the
parties are unable to agree, by the Presiding Judge. In all Non-Prisoner Pro Se
cases, a new mediator will be selected by the Court.
4.4. IMMUNITIES
All persons serving as mediators in the Program are performing quasi-judicial functions
and are entitled to all the immunities and protections that the law affords to the
performance of tasks integrally related to the judicial process, including settlement and
alternative dispute resolution.
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4.5. COMPENSATION OF MEDIATORS
A. Non-Exempt Civil Cases and Non-Prisoner Pro Se Cases.
1. Mediators shall be paid the rate of compensation agreed to and negotiated by the
parties, either per hour or per mediation session, including preparation time.
Information about each mediator’s experience and rate of compensation is
available on the Court’s website to assist the parties in selecting a mediator best
suited for a particular case. If the mediation is cancelled by the parties less than 48
hours prior to the mediation session, the parties will be responsible for one hour
of mediation time each to compensate the mediator for his or her preparation time.
2. Mediators may require that counsel and/or parties sign an agreement confirming
the terms of retention and compensation.
3. Time spent in travel by mediators is not reimbursable under this program unless
the parties consent to cover travel costs.
4. Mediator fees shall be divided equally among all separately represented parties,
unless otherwise agreed or ordered by the Court. Mediator fees shall be paid by
the parties directly to the mediator within 14 days of the conclusion of mediation.
5. A party who has been granted in forma pauperis status is automatically relieved of
his or her pro rata share of the mediator’s fee. All other parties shall continue to
bear their pro rata portions of the fee. The mediator may file a written request with
the Court seeking reimbursement of a share of his or her fees from the District
Court Fund pursuant to §2.12 of that Plan or make a written request that his or her
hours be treated as a pro bono appointment to satisfy the district’s pro bono
requirement.
6. A party who has not sought in forma pauperis status but is financially unable to pay
all or part of the pro rata share of the mediator’s fee, may move for a waiver of the
fee requirement. The Court shall then direct that the portion of that party’s share
of the mediator’s fee be paid out of the District Court Fund pursuant to §2.12 of
that Plan.
7. In cases involving government entities, the mediator, upon request, shall provide
a W-9 Form to the government party making payment to them.
8. The Presiding Judge may, in any case he or she deems appropriate, appoint a
mediator and direct that the mediator’s entire fee be paid out of the District Court
Fund pursuant to §2.13 of that Plan.
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B. Pro Bono Assignments. As set forth in § 4.2, every member of the Panel shall be
available for assignment by the Court to provide mediation services pro bono. The
Court is in the process of establishing a pilot mediation program for prisoner civil
rights cases. Prisoner civil rights cases that are selected for inclusion in the pilot
mediation program will be assigned a pro bono mediator in accord with Section 4.2
of this Plan. The guidelines for mediating prisoner civil rights cases will be set forth
in a separate administrative order. Any case that is assigned a pro bono mediator,
including prisoner civil rights cases, will be subject to the mediation session
limitations set forth in § 4.2.
SECTION 5 – SPECIAL MEDIATION COUNSEL
A. Special Mediation Counsel. The Presiding Judge may, in his or her discretion,
attempt to locate pro bono counsel to represent a pro se party or parties (“pro se
party”) in the Mandatory Mediation Proceedings.
B. Service to the Bar and Court. Special Mediation Counsel performs duties as a pro
bono service to the Court, litigants, and the bar. Any out-of-pocket costs Special
Mediation Counsel incurs during the course of representation of the pro se party,
including costs associated with obtaining copies of materials filed prior to
appointment and in attending mediation sessions, may be reimbursed from the
District Court Fund in accord with § 2.14 of the Plan for the Administration of the
District Court Fund, as funds are available. Motions for reimbursement out of the
District Court Fund shall be filed no later than 30 days from entry of judgment, or
reimbursement is waived.
C. Duties of Special Mediation Counsel.
1. Within seven days of filing of the Order Appointing Special Mediation
Counsel, Special Mediation Counsel shall file a Notice of Limited Appearance
of Special Mediation Counsel using the event “Notice of Limited Appearance
of Special Mediation Counsel” and shall contact the pro se party to help
prepare for the Mandatory Mediation Session.
2. On the agreed upon or set date, Special Mediation Counsel shall attend the
Mandatory Mediation Session and provide assistance to the pro se party.
Thereafter, the Special Mediation Counsel shall help the pro se party complete
any follow-up to the Mandatory Mediation Session, including the processing
of a settlement agreement when necessary.
3. Special Mediation Counsel represents the pro se party solely for purpose of the
Mandatory Mediation Proceedings. Special Mediation Counsel will provide no
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other legal service of any kind in the case without prior written authorization
by the Court to do so.
4. Special Mediation Counsel’s representation of the pro se party will terminate
at the conclusion of the Mandatory Mediation Proceedings.
SECTION 6 – COMPLETION OF MANDATORY MEDIATION
A. Events Constituting Completion of Mediation. Mediation shall be considered to
have been completed upon the happening of one of the following events:
1. The entry of an order granting a Motion to Opt Out of Mandatory Mediation,
withdrawing a case from the Program, or otherwise terminating the mediation
proceedings.
2. The filing of a Report of Mandatory Mediation indicating that mediation is
complete, and the case did not settle.
3. The filing of a Report of Mandatory Mediation indicating that the case has
settled.
B. Completion of Mediation by Court Order or Upon Report Indicating that
Mediation is Complete, and the Case did not Settle. The Court will promptly enter
an order relieving the mediator and special mediation counsel (if any) from further
responsibilities in the matter and directing the Clerk to terminate the mediator and
special mediation counsel (if any) from the docket.
C. Completion of Mediation Upon Report Indicating that Case has Settled. The Court
will promptly enter an order relieving the mediator and special mediation counsel (if
any) from further responsibilities in the matter and directing the Clerk to terminate
the mediator and special mediation counsel (if any) from the docket. The Presiding
Judge may, in his or her discretion, delay entry of such an order pending entry of a
stipulation of dismissal or until settlement has been consummated.
IT IS SO ORDERED.
Dated: October 8, 2021
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
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