A: The Civil Appeals
Mediation Program (CAMP), is a
court-annexed mediation program at the
United States Court of Appeals for the
Second Circuit.
Local
Rule 33.1 governs CAMP.
Q-2: How can I contact
CAMP?
A: The best way to
contact CAMP is by email to
camp_support@ca2.uscourts.gov.
Alternatively, you can call the CAMP
office at (212) 857-8760. We are open
between 8:30am and 5:00pm, Monday
through Friday, excluding federal
holidays.
Q-3: Does mediation affect the
briefing schedule?
A: No, the briefing
schedule is not adjourned or otherwise
extended due to mediation.
Q-4: What policies and
procedures should I be aware of regarding
CAMP?
A: CAMP policies and
procedures are set forth
here.
Counsel should discuss these policies
and procedures, and CAMP confidentiality
and settlement provisions with their
clients before attending the mediation.
Scheduling and
Attendance
Q-5: How is my case scheduled
for mediation?
A: Only fully counseled, civil cases are eligible for mediation.
CAMP screens all eligible appeals for mediation suitability. Among the factors considered are information provided by
the parties on Form C, the underlying record (including decisions, prior mediations, briefing, etc.),
the relief sought on appeal, the relationship between the parties, the length of time the parties have been
litigating, the clarity of appellate issues, and appellate jurisdiction.
Q-6: When is my case scheduled for mediation?
A: CAMP strives to schedule mediations prior to the filing of any briefs.
However, if parties request adjournments of the mediation the timing between the mediation and brief filing may be impacted.
The scheduling of mediation does not alter the briefing schedule required under Local Rule 31.2.
Q-7: Is
mediation
mandatory?
A: Yes. Under
Local
Rule 33.1, the Court has the
authority to direct counsel and parties
to participate in a mediation
conference. Nonetheless, any result
reached in mediation is entered only
upon consent of the parties. CAMP appreciates the cost and expense
of ordering counsel and clients into mediation and seeks to do so only
when it assesses that mediation may have a beneficial effect in terms of
resolution or issue clarification.
Q-8: A
mediation was not scheduled in my case. May
I request one?
A: Yes. Please send an
email request to
camp_support@ca2.uscourts.gov
explaining why you think mediation will
be beneficial. CAMP will respond
promptly. Consent from opposing counsel
would be helpful in making such a
request. Please note that CAMP cannot
conduct a mediation in an appeal where
any party is pro se pursuant to Local
Rule 33.1(a).
Q-9: Will the mediation be
in-person or by telephone?
A: The Court's
order will indicate whether the
conference is scheduled to be in-person
or by telephone. Generally, mediations
are scheduled to be in-person if the
attorneys of record are within commuting
distance of the courthouse. Otherwise,
the conferences are scheduled to be by
telephone on our customized conference
software. If a client is not within
commuting distance, counsel may request
permission for their client to
participate by phone. All requests must
be made in writing by email to camp_support@ca2.uscourts.gov.
Q-10: For in-person mediations,
what are the current health screening
requirements and entrance protocols in
response to COVID-19?
A: CAMP has resumed
in-person mediations.
For persons participating in-person,
masks will be optional, however, in
light of the continuing risk COVID-19
poses, some people may choose to
continue to wear a mask. The Court may
reinstate the mask requirement on short
notice should conditions change. All
participants who have business with the
Court must comply with the health
screening requirements and entrance
protocols posted at the entrance to the
building and on the website of the
United States District Court for the
Southern District of New York at
https://www.nysd.uscourts.gov/covid-19-coronavirus.
Furthermore, if parties are concerned
about the risk COVID-19 poses, counsel
may request a telephonic mediation. This
request must be made in writing by email
to camp_support@ca2.uscourts.gov.
Q-11: Can I request my scheduled
in-person or telephone mediation be changed
to zoom for specific reasons?
A: CAMP has the
capability to hold zoom mediations. If
counsel would like to request a zoom
mediation, such request must be made in
writing by email to camp_support@ca2.uscourts.gov.
CAMP will assess the request and respond
appropriately.
Q-12: Where will the in-person
mediation be held?
A: The Court's
order will provide the address. The CAMP
office is located in room 622 (6th
floor) of the Thurgood Marshall U.S.
Courthouse, 40 Foley Square, New York,
NY. Use the Pearl Street elevators for
access to room 622.
Q-13: Can I bring my electronic
device to the mediation?
A:
If counsel is otherwise authorized to bring an electronic device into the Court, then the device can be brought to mediation. For additional information, please contact CAMP.
Q-14: How do I obtain the
information needed for my telephonic
mediation?
A: Dial-in information,
including an individual PIN, is sent by
email to each counsel of record two
weeks prior to the mediation conference.
PINs cannot be shared.
To obtain PINs for parties and other
additional participants, counsel must
send the name, email address, and
telephone number of each individual by
email to camp_support@ca2.uscourts.gov.
Q-15: What if I cannot find my
PIN for
the telephonic mediation?
A: Check your email for
dates
approximately two weeks before the
scheduled mediation. Be sure to check
your
junk mail or spam folder. If you have
not received
a PIN, send an email to
camp_support@ca2.uscourts.gov.
Q-16: Who must attend the
mediation?
A: The Court's order
will instruct who the required attendees
are – i.e., Counsel must attend with
clients (and, if relevant, insurance
representatives), unless otherwise
provided by CAMP. Under
Local
Rule 33.1,
CAMP is authorized to require clients to
attend mediation.
Q-17: Must counsel file a notice of appearance to attend mediation?
A: Yes, there must be present for each party at least one lawyer who has filed a Notice of
Appearance by the time the mediation is held. Counsel must be admitted to the Second Circuit or
have applied for such admission. Otherwise, the mediation will be adjourned until this condition is satisfied.
Additional counsel may participate, so long as at least one lawyer for the relevant party participating has filed a Notice of Appearance.
Q-18: Who are appropriate
counsel
and client representatives to attend the
mediation?
A: The attorney who is
familiar with the case and on whose
advice the party currently relies must
attend the mediation. If counsel's
client is not required to attend the
mediation, then counsel must have
as much settlement authority as
feasible. If clients are required to
attend, a client representative with
as much settlement authority as feasible
must participate. CAMP is mindful of the
unique position of a governmental entity
as a litigant and participant in
mediation. Accordingly, when a
government entity is ordered to
mediation, CAMP generally does not
require clients to attend with
government counsel,
provided that government counsel
attending the mediation is fully
authorized to make a settlement
recommendation and
an appropriate government decision-maker
is available by telephone. (See 28
U.S.C.A. §473[b][5]; see also
United States v. U.S. Dist. Court
for N. Mariana Islands, 694
F.3d 1051, 1059 [9th Cir. 2012], as
amended [Oct. 16, 2012];
In re Stone, 986 F.2d 898, 903
[5th Cir. 1993]).
Q-19: Why is it important for
clients to attend a CAMP mediation when the mediation order so states?
A: CAMP has a long
tradition of requiring clients to attend
mediation (as authorized under FRAP 33
and LR 33.1) because the dynamics of the
mediation itself materially change when
the client is present to hear both
opposing counsel and the mediator’s
comments. Often, a client’s
pre-mediation settlement position will
alter during the course of the mediation
after actively participating in the
mediation and listening to the potential
paths ahead. CAMP values the time of
each and every client and strives to
hold all its mediations in the most
efficient and effective manner.
Q-20: My case won't settle.
Can I cancel the mediation?
A: Generally, no. The
Court is very mindful of using
participants' time efficiently and
effectively. Court ordered mediation has
many benefits other than settlement,
including assisting counsel and parties
in assessing their options and
interests. Even if no settlement is
reached, mediation can be productive
because issues are narrowed for
briefing, parties are empowered because
they speak for themselves, groundwork is
laid that improves the chances of
resolution in the future, and
jurisdictional issues are spotted early,
which may save the parties further time
and expense.
Q-21: How do I request an
adjournment of the mediation
conference?
A: A timely adjournment
request should be made in writing by
email to
camp_support@ca2.uscourts.gov,
and copied to opposing counsel. If the
request is on consent, counsel should
provide at least three agreeable
alternate dates. Last minute requests
will only be granted in case of an
emergency.
Q-22: What happens if a stay is
entered in my appeal after a mediation has
been scheduled?
A: If a stay is entered
in an appeal after a mediation has been
scheduled, counsel should advise the
CAMP office accordingly by email at camp_support@ca2.uscourts.go.
The scheduled mediation will
automatically be cancelled. Counsel must
notify the
CAMP office once the stay has been
lifted so the mediation may be
rescheduled.
Q-23: Is the briefing schedule extended because of mediation?
A: No, the briefing schedule required under Local Rule 31.2 is not
extended or otherwise adjusted because of a scheduled mediation.
Q-24: Who will mediate my appeal?
A: CAMP has two full-time court mediators
(Chief Kathleen M Scanlon, Dean W M Leslie) and a 15-person pro bono panel of accomplished mediators.
All pro bono mediators must have at least 10 years of legal experience and substantial mediation experience.
After a competitive application process, a mediator may be invited to join the Pro Bono Panel for a
limited term of 3 years, which can be renewed once. The particular mediator selected for a case is determined by
CAMP based on availability and background experience.
Q-25: In response to a court’s mediation order, may parties seek to have a matter mediated privately?
A: Parties are always free to have their matter mediated privately.
However, it is often helpful to do so in procedural coordination with the CAMP office.
Please contact CAMP for further information.
Preparing for the Mediation
Conference
Q-26: What should I do to
prepare for the mediation conference?
A: Counsel should
review their legal contentions so that
they are prepared to discuss the
prospects of the appeal and the case
candidly. Equally important, counsel
needs to confer with their client about
underlying interests and settlement
options.
Q-27: What should I do to
prepare my
client for the mediation conference?
A: Counsel should
familiarize themselves with
CAMP policies and procedures,
and discuss CAMP confidentiality and
settlement provisions with their
clients.
Q-28: Is the confidential
mediation statement required?
A: No. The
mediation
statement is not required but is
strongly encouraged. It should be
submitted by email to
camp_support@ca2.uscourts.gov
at least two business days prior to the
mediation conference. Do not file the
statement with the Court. A copy does
not need to be sent to opposing counsel.
Q-29: How long should I expect
the mediation to last?
A: The Court's
order instructs that counsel allot at
least three hours for the mediation
conference.
The Mediation Conference
Q-30:
What happens at the
mediation conference?
A: Disputes are
inevitable, but litigation is not.
Mediation is a party-centered,
confidential, and interactive process
where a neutral third-party (the
mediator) assists counsel and parties to
resolve disputes without further
adjudication. Appellate mediation is
often the last opportunity for the
parties to craft a resolution
themselves. Counsel and parties, with
the assistance of a mediator, assess the
costs and benefits of pursuing an
appeal, and whether it is the best
alternative to a negotiated agreement.
The mediator will meet with the parties,
both together and separately, and have a
conversation to explore the prospect of
amicable resolution and clarify
appellate issues. Mediators use a wide
variety of techniques and methodologies,
including facilitation, issue
evaluation, and risk-scenario analysis
to guide the process in a constructive
direction and help the parties consider
resolutions outside the litigation
process. In some cases, a settlement is
reached after such discussions; if a
resolution is not reached at the initial
conference, a follow-up conference with
the mediator may be scheduled. Even if a
settlement is not reached, participation
in mediation may lead to more concise
briefs to aid the Court.
Q-31:
Can we talk about more
than just the specific issues on
appeal?
A: Yes. The parties are
invited and encouraged to explore the
possibility of a global settlement of
the entire dispute. The discussion could
reach related litigation, arbitration,
or even anticipated litigation.
Q-32:
What is the role of the
mediator?
A: The mediator is a
nonjudicial neutral third-party who
serves as an advocate of settlement.
Counsel can expect the mediator to be
familiar with the history of the
litigation, the posture of the case, and
the issues on appeal. The mediator may
seek additional information about the
dispute and the parties' interests,
claims, and defenses in exploring the
possibility of settlement. Mediators can
overcome many of the barriers that
prevent parties from identifying their
underlying interests, needs, priorities,
and goals. Mediators can assist each
party in understanding the other's
interests.
Q-33:
Do I have to settle my
case?
A: No. Whether to
settle, or even to make or return a
settlement offer, is ultimately for the
parties and their counsel to decide.
However, counsel and parties are
required to participate in the mediation
process in good faith. Experience has
shown that settlements can often be
achieved when neither side thought it
was possible.
Q-34:
Is mediation confidential?
A: Yes, as provided under
Local
Rule 33.1 and applicable law. See, e.g. In re Teligent, 640 F.3d 53 (2d Cir. 2011).
As such, CAMP does not require any separate confidentiality agreement.
CAMP does not permit recordings of any mediation, including by CAMP,
and there are no transcripts of any mediations to maximize confidentiality protections.
In the rare event that sanctions under Local Rule 33.1(g) are sought,
confidentiality is protected to the largest extent feasible.
After the Mediation
Conference
Q-35:
If a settlement is reached
through the CAMP mediation process, when is
it binding on the parties?
A: To protect
confidentiality, CAMP policy is that if
a settlement is reached, any agreement
must be reduced to writing and fully
executed by all before it is binding on
the parties. CAMP does not participate in the drafting of
any settlement agreement. Counsel are expected to file a
stipulation of dismissal of the appeal pursuant to FRAP 42(b)
once the settlement has been executed.
Q-36:
What is CAMP’s resolution rate?
A: CAMP’s average resolution rate for the past 6 years (2017-2023)
has been approximately 37%. Please note that this percentage is an estimation and
based on cases ordered into mediation.
Q-37:
How do I file a
stipulation?
A: All stipulations are filed using ECF or ACMS.
You may only e-file a stipulation on behalf of yourself.
All other parties must either sign the stipulation in ink or e-file the
same stipulation using their own ECF or ACMS accounts.
Please note that for all civil appeals filed as of October 2, 2023,
the ACMS filing system must be used.
Q-38:
Who do I contact if I am
having trouble with ACMS or CM/ECF filings?
A: The ACMS and CM/ECF helpdesk can
be contacted by email at
efilerhelpdesk@ca2.uscourts.gov.
Alternatively, you can call the ACMS and CM/ECF
helpdesk at (212) 857-8630. Office hours
are between 8:30am and 5:00pm, Monday
through Friday, excluding federal
holidays.
Q-39:
How do I provide feedback
on the mediation process?
A: At the conclusion of
the mediation process, a survey will be
sent by email to counsel. Any questions
regarding the survey should be sent to
CAMP by email at
camp_support@ca2.uscourts.gov.
