How Should a Company Approach Appellate Mediation in the Fourth or Eleventh Circuit? Authority, Confidentiality, Insurance, and Settlement Approval
A company should approach appellate mediation as a decision-stage proceeding, not as an informal pause in the appeal. Before the conference, counsel should assess the likely appellate outcomes, identify every person or entity whose approval or money is required, confirm actual settlement authority, and prepare terms that account for the judgment, insurance, confidentiality, fees, enforcement, and dismissal.
Mediation does not automatically suspend briefing, enforcement, injunction obligations, or other appellate deadlines. The Fourth and Eleventh Circuits both mediate civil appeals under Federal Rule of Appellate Procedure 33, but their local procedures differ in important ways.
The Answer Depends On…
How a company should prepare depends on:
whether the appeal is in the Fourth Circuit or Eleventh Circuit;
whether the company is the appellant, appellee, cross-appellant, or an interested nonparty such as an insurer or indemnitor;
whether the judgment awards money, imposes an injunction, declares rights, orders specific performance, or combines several forms of relief;
whether enforcement is stayed and whether a bond or other security is in place;
whether settlement requires approval from a board, manager, member, parent company, lender, insurer, bankruptcy court, government body, or another stakeholder;
who controls settlement under the insurance policy, reservation-of-rights letter, indemnity agreement, or engagement terms;
whether the insured faces an uninsured retention, uncovered damages, exposure above limits, or nonmonetary obligations;
whether related litigation, claims, investigations, contracts, or regulatory obligations must be resolved;
whether the parties want only to dismiss the appeal or also seek vacatur, remand, modification, or relief from the judgment below;
whether attorney’s fees, appellate costs, interest, tax consequences, liens, confidentiality, and release language are material;
whether the appellate issues could affect future operations, other cases, industry participants, or possible Supreme Court review; and
whether briefing, oral argument, injunction, payment, or enforcement deadlines will arrive while negotiations continue.
Appellate Mediation Is Not a Retrial of the Case
By the time a case reaches a federal court of appeals, the evidence has generally been fixed in the district-court record. The mediator does not decide who should win. The useful question is what each side faces if no agreement is reached.
That requires a different analysis from pretrial mediation. A company should evaluate:
the probability of affirmance, reversal, vacatur, or partial remand;
the standard of review for each issue;
preservation, waiver, jurisdiction, and harmless-error risks;
what proceedings would remain after a remand;
the time and expense of briefing, argument, rehearing, and possible certiorari;
whether the judgment can be enforced while the appeal proceeds; and
the operational value of finality, confidentiality, precedent avoidance, or a negotiated business solution.
A strong mediation position is not simply “we will win.” It translates appellate risk into concrete settlement variables: timing, payment security, business restrictions, releases, future conduct, fee exposure, and the value of ending uncertainty.
Fourth Circuit Mediation: What Companies Should Expect
Under Fourth Circuit Local Rule 33, counseled civil and agency appeals are reviewed by a circuit mediator after the docketing statements required by Local Rule 3(b) are filed. The mediator decides whether a conference may help the court or the parties, and counsel may also request mediation. Participation by counsel is mandatory when a conference is scheduled.
The conference may address more than settlement. The Fourth Circuit identifies jurisdictional review, issue clarification and reduction, and efficient management of the appeal as proper subjects. Even a company that believes settlement is unlikely should therefore prepare to discuss the procedural posture and appellate issues intelligently.
Before the conference, Federal Rule of Appellate Procedure 33 requires attorneys to consult their clients and obtain as much settlement authority as feasible. The Fourth Circuit’s mediation guidance likewise tells counsel to review the case, prepare for questions about the legal arguments and possible compromises, consult the client, and obtain settlement authority.
Critically, mediation does not automatically toll the briefing schedule. If settlement discussions justify more time, counsel should address an extension through the procedure permitted by the court and mediator. Until relief is granted, the existing due date controls.
Eleventh Circuit Mediation: Kinnard Mediation Center Requirements
The Eleventh Circuit’s Kinnard Mediation Center administers civil appellate mediation under Federal Rule of Appellate Procedure 33 and Eleventh Circuit Rule 33-1. A mediator, an active or senior circuit judge, or a panel may direct participation. The court may schedule mediation early—often after the Civil Appeal Statement and before merits briefing.
The Eleventh Circuit’s published procedures are particularly specific about participation and authority. Unless the circuit mediator grants an advance waiver, the entire mediation ordinarily includes counsel, the client, and representatives of persons or entities directly affected financially, such as indemnitors. Party representatives must possess meaningful authority to resolve claims, not merely authority to relay an offer to someone who is unavailable.
The Eleventh Circuit also expressly addresses insurers. Under the Kinnard Mediation Center’s current Mediation in the Eleventh Circuit guidance, an insurer that has not offered policy limits ordinarily must participate through a representative with authority and discretion up to the lesser of policy limits or the claimant’s most recent demand. If the insured has exposure beyond limits or control over payment, the insured and insurer may both need to participate.
Counsel in a selected appeal must also submit a Confidential Mediation Statement to the mediator. Current guidance calls for receipt at least one week before mediation, preferably in a letter of no more than five pages. It should candidly address the dispute, procedural issues, related proceedings, developments affecting settlement, prior negotiations, strengths and weaknesses, necessary settlement terms, realistic remand outcomes, fees and costs, participants, and authority. It is not sent to opposing counsel or filed with the clerk.
Build the Settlement-Authority Chain Before the Conference
“Authority” has two dimensions: how much a representative may offer or accept, and whether that representative can bind the company to the entire package.
An officer may have authority to negotiate a dollar amount but not to approve a broad release, modify a restrictive covenant, transfer intellectual property, concede tax treatment, waive insurance rights, or settle related litigation. A board may have delegated authority only within a range. A private-equity sponsor, lender, minority owner, or parent may possess contractual consent rights even when it is not a party to the appeal.
Before mediation, counsel should prepare an approval map identifying:
the corporate representative attending;
the maximum authority already delegated;
subjects requiring separate legal, board, committee, member, or investor approval;
insurer and indemnitor authority;
who can approve nonmonetary terms;
who must review tax, accounting, employment, regulatory, or disclosure consequences;
how quickly additional authority can be obtained during the session; and
whether a signed term sheet can be binding before long-form documents are completed.
Waiting until the mediator presents a serious proposal to discover an unavailable decision-maker, an insurer limitation, or a board-approval condition can destroy momentum and create compliance problems.
Coordinate Insurance Before Numbers Are Exchanged
Insurance can make appellate mediation more complex because economic exposure and settlement control may be divided among the company, one or more carriers, excess insurers, and indemnitors.
Counsel should review the operative policies and coverage correspondence—not merely the declarations page. Relevant questions include:
Who has the contractual right to control settlement?
Is the defense subject to a reservation of rights?
What limits remain after defense costs?
Have excess layers been properly notified?
Does the judgment include uncovered damages, punitive damages, fees, interest, or injunctive relief?
Is the company responsible for a deductible, self-insured retention, or amount above limits?
Could allocating settlement consideration among covered and uncovered claims create a later coverage dispute?
Does the insurer require releases, allocation language, payment documentation, or internal committee approval?
Does the policy address the insured’s consent, cooperation, or refusal of a recommended settlement?
The company and carrier should align on attendance, authority, contribution, allocation, and communications before mediation. That does not eliminate legitimate coverage disagreements; it prevents them from surfacing for the first time while the opposing party is waiting for an answer.
Protect Confidentiality Without Misunderstanding Its Limits
Both circuits impose strong confidentiality protections on their mediation processes. Fourth Circuit Local Rule 33 excludes mediation statements and comments from the court file and bars disclosure outside the mediation participants, including to the judges deciding the appeal. The Eleventh Circuit similarly protects mediation communications and generally prohibits references to Kinnard mediation in filings or arguments to a court or adjudicative body addressing the merits.
But mediation confidentiality does not automatically solve every information problem. A company should separately consider:
who within the corporate family, insurer group, or approval chain is permitted to receive mediation information;
whether sharing information with lenders, auditors, regulators, or nonparticipant stakeholders is permitted;
whether privileged legal analysis should be separated from business communications;
whether a public company may have disclosure obligations;
whether settlement terms themselves will be confidential;
whether a dismissal motion, remand request, fee filing, or enforcement proceeding may reveal terms; and
whether applicable law permits enforcement of a term sheet or oral agreement.
If there is uncertainty about permitted disclosure, raise it with the circuit mediator before distributing mediation material. Do not assume that labeling an ordinary business email “confidential” gives it the same protection as a court-sponsored mediation communication.
Prepare a Decision File, Not a Trial Binder
The company’s mediation team should have a compact file that supports decisions in real time. Useful materials often include:
the notice of appeal, judgment, challenged orders, and current appellate docket;
a short chronology and procedural map;
the strongest appellate issues and the best responses to them;
standards of review and preservation vulnerabilities;
key record citations, not a warehouse of exhibits;
a realistic outcome tree for affirmance, reversal, partial remand, and new proceedings;
accrued and projected fees, costs, and interest;
stay, bond, enforcement, and injunction status;
applicable policies, reservations of rights, indemnity agreements, and remaining limits;
prior offers and demands;
required releases, covenants, assignments, payment terms, and security;
an authority and approval matrix; and
draft term-sheet language for issues likely to be negotiated.
This material should allow the decision-maker to answer: What does the company obtain? What does it give up? What happens if the appeal continues? What approvals remain? When does performance occur? What ends the litigation?
Deadlines Continue Unless the Court Changes Them
One of the most dangerous assumptions is that mediation pauses the appellate case. It generally does not.
In the Fourth Circuit, Local Rule 33 states that briefing time is not automatically tolled. The court’s guidance explains that the appeal proceeds normally and that an extension must be obtained.
In the Eleventh Circuit, filing a Civil Appeal Statement and scheduling or rescheduling mediation do not stay appellate proceedings. The Kinnard Mediation Center may grant qualifying briefing extensions when mediation has a substantial prospect of resolving the case, but its authority is limited and the existing deadline remains effective until an extension is confirmed. Current Kinnard guidance also specifies timing and eligibility requirements for those requests.
A company should calendar independently:
briefing and appendix deadlines;
transcript and record obligations;
stay and bond deadlines;
injunction-compliance dates;
post-judgment fee proceedings;
oral argument and supplemental-authority obligations;
payment or enforcement dates; and
any deadline for rehearing or further review if the appeal ends without settlement.
Negotiations should never become the reason a brief, bond, or mandatory filing is late.
Settlement Approval Must Match the Client’s Governance and the Case
The person at mediation may be able to negotiate without having final legal authority to close every deal. Whether a settlement can be conditioned on later approval depends on the governing documents, applicable law, the court’s attendance requirements, and what the parties say or sign.
Possible approvals include:
board or special-committee approval;
manager or member approval for an LLC;
parent-company or investor consent;
insurer or excess-carrier approval;
lender consent under credit documents;
bankruptcy-court approval;
approval for a class, derivative action, minor, receivership, or governmental entity; and
regulatory or public-body procedures.
The safest course is to identify these constraints in advance, obtain the broadest feasible authority, and state any genuine condition precisely in the term sheet. Vague language such as “subject to documentation” or “subject to approval” can create a second dispute over whether an agreement already exists.
What Happens If the Case Settles?
Settlement and dismissal are related but distinct. Under Federal Rule of Appellate Procedure 42, the parties may seek dismissal of a docketed appeal by signed agreement, and other relief may require a court order. In the Eleventh Circuit, the court’s mediation guidance instructs parties to file a joint or agreed motion to dismiss under Rule 42(b) and Eleventh Circuit Rule 42-1(a), addressing the scope of dismissal and allocation of costs.
The settlement documents should address:
dismissal of the appeal and any cross-appeal;
allocation of appellate costs and attorney’s fees;
the timing of payment or other performance;
treatment of the judgment, accrued interest, liens, and security;
release of a supersedeas bond or escrow;
ongoing injunctions or business obligations;
claims and parties outside the appeal;
confidentiality and permitted disclosures;
tax reporting and allocation where material;
default, enforcement forum, and retained jurisdiction; and
the sequence for signatures, performance, dismissal, and satisfaction of judgment.
A voluntary dismissal ordinarily ends appellate review; it does not automatically erase the judgment below. If the deal depends on vacatur, remand, or modification, counsel must evaluate whether the court has authority and whether discretionary relief is realistically available. The parties should not price a settlement on the assumption that a court must grant relief simply because they request it.
Risks of Poor Appellate-Mediation Preparation
Common failures include:
sending a representative who lacks required authority;
omitting an insurer, excess carrier, indemnitor, or other necessary stakeholder;
treating confidentiality as permission to circulate mediation communications without limits;
allowing briefing or enforcement deadlines to expire;
negotiating only a payment amount while ignoring the existing judgment or injunction;
failing to account for appellate fees, costs, interest, liens, or bond release;
signing a term sheet without resolving whether it is binding;
promising vacatur or court approval that the parties cannot control;
dismissing the appeal before required performance or security is in place; and
using maximalist merits rhetoric that prevents a realistic business assessment.
The remedy is advance coordination among appellate counsel, trial counsel, the client decision-maker, in-house counsel, insurers, and any required specialists.
Authority and Official Sources
Federal Rule of Appellate Procedure 33: permits appeal conferences concerning settlement, issue simplification, and other matters aiding disposition; counsel must consult the client and obtain as much settlement authority as feasible. See Fed. R. App. P. 33.
Federal Rule of Appellate Procedure 42: governs voluntary dismissal of federal appeals and identifies circumstances in which additional court-ordered relief is required. See Fed. R. App. P. 42.
Fourth Circuit Local Rule 33: addresses selection, participation, purposes, briefing, mediator authority, and confidentiality. See Fourth Circuit Rule 33 and the court’s Mediation FAQs.
Eleventh Circuit Rule 33-1 and Kinnard Mediation Center procedures: govern court-directed mediation, confidential submissions, attendance, settlement authority, confidentiality, extensions, dismissal, and sanctions. See the Kinnard Mediation Center, Eleventh Circuit mediation forms and information, and Mediation in the Eleventh Circuit.
Court rules and forms change. Counsel should confirm the current version, docket notices, assigned mediator’s instructions, and case-specific orders before acting.
Why an Appellate-Aware Mediation Strategy Matters
Appellate settlement value depends on more than a damages number. The standard of review, preservation, remedy, stay status, mandate, possible remand, fee exposure, and prospects for rehearing or Supreme Court review can change the bargaining range and the terms needed for a durable resolution.
Biazzo Law brings an appellate-aware litigation perspective to mediation strategy. The firm handles and supports civil matters in Florida and North Carolina, federal appeals in the Eleventh and Fourth Circuits, emergency injunction and stay proceedings, and selected U.S. Supreme Court and amicus matters. That perspective helps companies connect settlement decisions to the live appeal, ongoing enforcement, potential remand, and longer-term legal consequences.
The firm’s approach can include:
independent appellate-risk and jurisdiction review;
settlement-authority and stakeholder planning;
coordination with trial counsel, in-house counsel, insurers, and indemnitors;
analysis of stays, bonds, injunctions, and enforcement leverage;
preparation for circuit mediation and confidential submissions;
drafting and review of appellate settlement and dismissal terms;
preservation of options if mediation ends without agreement; and
evaluation of rehearing, certiorari, and amicus implications when the dispute presents broader questions.
Frequently Asked Questions
Is appellate mediation mandatory in the Fourth Circuit?
All counseled civil and agency appeals are reviewed by a circuit mediator after the required docketing statements, and counsel must participate if a conference is scheduled. A party may also request mediation. Settlement itself remains voluntary.
Is appellate mediation mandatory in the Eleventh Circuit?
The Kinnard Mediation Center, a circuit judge, or a panel may direct counsel and parties to participate. If mediation is ordered or scheduled, applicable attendance and submission requirements must be followed, although no party can be forced to accept a settlement.
Who must attend an Eleventh Circuit mediation for a company?
Unless the mediator grants an advance waiver, counsel, the client, and financially affected representatives such as insurers or indemnitors may need to participate for the entire session. The representative must have the authority required by the court’s procedures. Counsel should confirm participants with the assigned mediator rather than assume an internal corporate representative is sufficient.
Does an insurer have to attend appellate mediation?
In the Eleventh Circuit, current Kinnard procedures expressly require qualifying insurer participation and settlement authority unless waived in advance. In either circuit, an insurer or indemnitor should be involved early when its consent, funding, coverage position, or policy rights affect settlement.
Are Fourth and Eleventh Circuit mediation communications confidential?
Yes, both circuits provide strong confidentiality protections for mediation communications. The precise rules and exceptions matter, however. A company should determine who may receive the information and should consult the mediator before disclosing it outside the recognized participant group.
Does mediation extend the appellate briefing deadline?
No—not automatically. A party must obtain an authorized extension and continue complying with the existing schedule until that relief is granted. Settlement discussions also do not automatically stay enforcement or injunction duties.
Can the parties settle but keep the appeal open until payment is made?
They may structure the sequence of performance and dismissal by agreement, subject to the appellate rules and court orders. The documents should state clearly when payment, releases, satisfaction, bond release, and dismissal occur. Counsel should not assume a private agreement itself suspends court deadlines.
Will dismissing the appeal vacate the district-court judgment?
Usually not. Dismissal generally ends the appeal while leaving the judgment below in place. Vacatur, remand, or modification requires separate legal analysis and, often, discretionary court action.
Related Biazzo Law Resources
Parent service page: Federal and State Civil Appeals
Related guide: What Should Companies Know About Settlement During an Appeal?
Related guide: Can the Parties Vacate a Judgment as Part of an Appellate Settlement?
Schedule a Litigation Strategy Review
If your company has a pending or anticipated mediation in the Fourth or Eleventh Circuit, Biazzo Law can assess the appellate posture, deadlines, authority structure, insurance participation, enforcement risk, settlement terms, dismissal procedure, and consequences of agreement or impasse.
Schedule a litigation strategy review and provide the judgment or order, notice of appeal, current docket, mediation notice, key briefs or motions, insurance and indemnity information, stay or bond documents, prior settlement communications, and the earliest known deadline.
This article is for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. Rules, forms, and court procedures may change, and case-specific orders control.
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