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Appeal: 13-1890 Doc: 8 Filed: 07/31/2013 Pg: 1 of 5







CARY, NC 27513
(919) 469-2853

FAX (919) 469-5278

[email protected]








July 31, 2013

Re: 13-1890, Tempie Ann Bell v. Eric K. Shinseki


Pursuant to Local Rule 33, a mediation conference has been scheduled in this

Dear Counsel:

case. For everyone's convenience, it will be conducted by TELEPHONE on
August 14, 2013, at 9:30 a.m. EASTERN TIME. The Circuit Mediator will
initiate the call. It is the policy of this office that the use of cell phones, and the
electronic recording of conferences, is prohibited.

Counsel addressed below are understood to be the lawyers with primary

responsibility for this case and are required to participate. If: (1) any counsel
listed below do not need to participate; or (2) additional or different counsel
are necessary or beneficial for this conference; or (3) if this date presents an
unavoidable conflict with a previously scheduled court appearance, please
contact the undersigned Circuit Mediator's assistant, Lucille Payne,
immediately by telephone at 843-521-4022.

motions or delay by attempting to resolve any procedural problems in the case, to
identify and clarify the main issues being raised in the appeal, and to explore any
possibilities there may be for settlement. All counsel are expected to discuss

There are several purposes for this conference: to prevent unnecessary

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settlement with their clients and then attend the conference with authority to initiate
and respond to settlement proposals.


Frank C. Laney
Circuit Mediator

Copies: Joan Brodish Binkley

Lynne P. Klauer
Daniel F. Read

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United States Court of Appeals for the Fourth Circuit

About Pre-Argument Mediations

Pre-argument mediations are scheduled by the Court with counsel for all parties in
many civil appeals. They are conducted by experienced and specially trained Circuit
Mediators. Although significant attention may be given to procedural questions and
problems raised by counsel in a case, the primary purpose of the mediation is to
offer participants a confidential, risk free opportunity to candidly evaluate their case
with an informed neutral and to explore possibilities for voluntary disposition of the

Case Selection
Cases are selected for pre-argument mediations in several ways. Most are selected
by the mediation program from the pool of all fully counseled civil appeals.
Excepted from the screening process are prisoner, habeas corpus and some agency
cases. Cases may be scheduled for a mediated conference at the request of one or
more of the parties. Such requests are kept confidential by the Court but need not be
by the requesting party. Requests for a mediation are usually allowed in any fully
counseled civil appeal. Cases occasionally are referred by hearing panels for
mediation just before or after oral argument.

Mediation Scheduling & Format
Nearly all pre-argument mediations are scheduled before submission of briefs and
calendaring for oral argument. Written notice from the Court is mailed to each
party’s representative in advance of the mediation date. Most mediations are by
telephone with the Court initiating the calls. However, if convenient and beneficial,
mediations may be in person.

Most mediations begin with the mediator briefly explaining the mediation process.
The focus of discussion usually moves fairly quickly to explication of the issues on
appeal. The purpose of this discussion is not to decide the case or reach conclusions
about the issues, but to understand what the issues are and to evaluate the risks on
appeal. The mediator will also inquire as to any procedural questions or problems
counsel might have that could be resolved by agreement. These might include
questions about the joint appendix or the need for a specially tailored briefing

Initial mediations typically last an hour and sometimes longer. In many cases, the
discussions go no further. Often, proposals are generated that require further review
so follow-up discussions may continue for days or weeks or longer. If negotiations

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continue productively and all parties and the Circuit Mediator agree, briefing may
be postponed for a reasonable time until negotiations are completed. Follow-up
telephone or in-person mediations may be scheduled, with or without clients, as
necessary, to fully pursue all chances for negotiated settlements.

What Participants Can Expect
Generally, participants can expect the Circuit Mediator to facilitate or lead a
thoughtful and sometimes detailed exploration of the case. The extent of the
mediator’s preparation will vary with the amount of information available at the
time of the mediation. Usually the Circuit Mediator will have read the district
court's opinion as well as the docketing statement. The Circuit Mediator will inquire
about settlement and will probe for each party's interests if they are not immediately
evident, often in private caucuses with each party. Every effort will be made to
generate offers and counter-offers until the parties either settle or know the case
cannot be settled and by how much it cannot be settled. Mediations are relatively
informal. They are, however, official proceedings of the Court.

What the Court Expects
The Court attempts to identify lead counsel for all parties when scheduling
mediations. This is not always possible so those notified of the mediation
conference are asked to advise the Court in advance of the mediation if other
counsel will be attending. Considerable time and effort is expended in preparing for
and participating in these mediations, and attitudes and perceptions of participants
frequently change in the process. Experience shows that this time and effort may be
wasted and opportunities for settlement lost when the lawyers attending the
mediation are not the lawyers on whose judgment the client will primarily rely
when making decisions. The perceived tactical advantage of sending to the
mediation an attorney with limited knowledge or authority is more than offset by
the lost opportunity to influence or be influenced by this informed evaluation and
settlement discussion. Thus, lead counsel are asked to come prepared to articulate
their view of the merits of the case as well as their clients' interests and needs.

While counsel are to have authority to make and respond to offers, the Circuit
Mediators do not necessarily expect counsel to have absolute settlement authority.
Our experience is that in most cases there is more movement from prior settlement
positions than anyone expected, requiring further consultation with clients. Thus,
counsel may wish to have clients present, or available by phone, at the time of the
mediation. Clients are not required to be present at most initial mediations.

Mandatory Participation - Voluntary Settlement
Fourth Circuit Rule 33 requires the participation of all parties in scheduled

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mediations, usually through their counsel. Sometimes the purposes of the mediation
cannot be achieved without the involvement of individuals or groups who are not
parties to the appeal; such parties may be invited to participate. No actions affecting
the interests of any party or the case on its merits, however, will be taken without
the consent of all parties.

By rule, nothing said in any mediation by the participants, including the Circuit
Mediator, may be disclosed to anyone in the Fourth Circuit Court or any other court
that might ever deal with the case. Disclosure is also prohibited to any person
outside those participating directly or indirectly in the mediation process. This
applies in all cases, including ones referred for mediation by the Court. This court
rule does not apply to any settlement agreements. However, this in no way prohibits
the parties from separately contracting that the terms of their agreement shall
remain confidential.