Notice of Scheduled Mediation — Blue Flame Medical LLC v. Chain Bridge Bank, No. 21-2219 (Fourth Circuit)

Summary

The Office of the Circuit Mediator of the United States Court of Appeals for the Fourth Circuit sent a Notice of Scheduled Mediation in No. 21-2219, Blue Flame Medical LLC v. Chain Bridge Bank. The letter, dated November 17, 2021 and signed by Circuit Mediator Frank C. Laney, says a telephone mediation conference is scheduled for Monday, Nov. 29, 2021, at 9:30 a.m. Eastern Time. It lists the purposes as preventing unnecessary motions or delay, identifying and clarifying the main issues in the appeal, and exploring possibilities for settlement. Attached are Local Rule 33 on circuit mediations, including its confidentiality requirement, and a Fourth Circuit statement About Pre-Argument Mediations.

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OFFICE OF THE CIRCUIT MEDIATOR
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

EDWARD G. SMITH
CHIEF CIRCUIT MEDIATOR
N. MYRTLE BEACH, SOUTH CAROLINA
FRANK C. LANEY
CIRCUIT MEDIATOR
409 ACCOLADE DRIVE
CARY, NC 27513
(919) 469-2853
FAX (919) 469-5278
Frank_Laney@ca4.uscourts.gov
CYNTHIA MABRY-KING
CIRCUIT MEDIATOR
CLARKSVILLE, VIRGINIA

November 17, 2021

Re: 21-2219, Blue Flame Medical LLC v. Chain Bridge Bank, N.A.
NOTICE OF SCHEDULED MEDIATION

Dear Counsel:

Pursuant to Local Rule 33, a copy of which is attached, a mediation
conference has been scheduled in this case. Please review the rule carefully. For
everyone's convenience, this conference will be conducted by TELEPHONE on
Monday, Nov. 29, 2021, at 9:30 a.m. EASTERN TIME.

The use of cell phones, and the electronic recording of conferences, is
prohibited.

The Circuit Mediator will initiate the call.

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 OCM Program Administrator Michelle Burchett,
immediately, at 804-722-0270.

There are several purposes for this conference: to prevent unnecessary
motions or delay by attempting to resolve any procedural problems in the case, to
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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
settlement with their clients and then attend the conference with authority to
initiate and respond to settlement proposals.

Sincerely,
Frank C. Laney
Circuit Mediator
Copies: Donald Burke
Eric Franklin Citron
Kathleen Foley
Matthew Michael Madden
Gary Andrew Orseck
Alan E. Schoenfeld
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Local Rule 33
Circuit Mediations
Circuit Mediation Conferences
All civil and agency cases in which all parties are represented by counsel on appeal
will be reviewed by a circuit mediator after the filing of the docketing statements
required by Local Rule 3(b). The circuit mediator will determine whether a
mediation conference may assist either the Court or the parties. Counsel for a party
may also request a conference if counsel believes it will be of assistance to the
Court or the parties. Counsels' participation is required at any scheduled
conference. Mediation conferences will generally be conducted by telephone but
may be conducted in person at the discretion of a circuit mediator. Mediation
conferences may be adjourned from time to time by a circuit mediator. Purposes of
the conference include:
1. Jurisdictional review;
2. Simplification, clarification, and reduction of issues;
3. Discussion of settlement; and
4. Consideration of any other matter relating to the efficient management and
disposition of the appeal.

Although the time allowed for filing of briefs is not automatically tolled by
proceedings under this local rule, if the parties wish to pursue, or are engaged in,
settlement discussions, counsel for any party may move to extend the briefing
schedule. The mediator, through the Clerk of Court, may enter orders which
control the course of proceedings and, upon agreement of the parties, dispose of
the case.
Confidentiality Required
Statements and comments made during all mediation conferences, and papers or
electronic information generated during the process, are not included in Court files
except to the extent disclosed by orders entered under this local rule. Information
disclosed in the mediation process shall be kept confidential and shall not be
disclosed to the judges deciding the appeal or to any other person outside the
mediation program participants. Confidentiality is required of all participants in
the mediation proceedings. All statements, documents, and discussions in such
proceedings shall be kept confidential. The mediator, attorneys, and other
participants in the mediation shall not disclose such statements, documents, or
discussions without prior approval of the Standing Panel on Attorney Discipline.
Any alleged violations of this rule shall be referred to the Court's Standing Panel
on Attorney Discipline for a determination pursuant to Local Rule 46(g) of
whether imposition of discipline is warranted. All proceedings before the Standing
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Panel on Attorney Discipline involving confidential information under this
procedure shall be confidential.
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 schedule.
Local Rule 33 can be viewed here.
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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 appeal.
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 schedule.
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 continue productively and all parties and the Circuit Mediator agree,
briefing may be postponed for a reasonable time until negotiations are completed.
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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
mediations, usually through their counsel. Sometimes the purposes of the
mediation cannot be achieved without the involvement of individuals or groups
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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.
Confidentiality
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.
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