10th Cir. R. 33

33.1 Mediation conference. (A) Circuit mediation office; purpose of mediation conference. The circuit mediation office may schedule and conduct mediation conferences in any matter pending before the court. The primary purpose of a conference is to explore settlement, but case management matters may also be addressed.

(B) Participation of counsel and parties. Counsel must participate in every scheduled mediation conference and in related discussions. Generally, a party may participate but need not unless required by the circuit mediation office. Conferences are conducted by telephone unless the circuit mediation office directs otherwise.

(C) Preparation of counsel for mediation conference; settlement authority. Counsel must consult with their clients and obtain as much authority as feasible to settle the case and agree on case management matters in preparing for the initial conference. These obligations continue throughout the mediation process. (D) Confidentiality.

Statements made during the conference and in related discussions, and any records of those statements, are confidential and must not be disclosed by anyone (including the circuit mediation office, counsel, or the parties, and their agents or employees), to anyone not participating in the mediation process. Proceedings under this rule may not be recorded by counsel or the parties. 120 (E) Conference order; mediator authority. The circuit mediation office may cause a judgment or order to be entered controlling the course of the case or the mediation proceedings.

The circuit mediation office and its mediators are delegates of this court. Any conference orders or other communications from the circuit mediation office must be treated the same as any other court directive. (F) Extensions for ordering transcript or filing brief. The time allowed by Federal Rule of Appellate Procedure 10(b)(1) for ordering a transcript and by Rule 31.1 for filing briefs is not automatically tolled pending a conference.

If a conference has been scheduled, counsel may contact the circuit mediation office for an extension of time to order a transcript or to file a brief. (G) Request for mediation conference by counsel. Counsel may request a mediation conference by contacting the circuit mediation office. The office will determine whether a conference will be held.

(H) Sanctions. The court may impose sanctions if counsel or a party violates this rule or an order entered under it. 121 Fed. R. App. P. Rule 34. Oral Argument (a) In General.

(1) Party’s Statement. Any party may file, or a court may require by local rule, a statement explaining why oral argument should, or need not, be permitted. (2) Standards. Oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary for any of the following reasons: (A) the appeal is frivolous; (B) the dispositive issue or issues have been authoritatively decided; or (C) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.

(b) Notice of Argument; Postponement. The clerk must advise all parties whether oral argument will be scheduled, and, if so, the date, time, and place for it, and the time allowed for each side. A motion to postpone the argument or to allow longer argument must be filed reasonably in advance of the hearing date. (c) Order and Contents of Argument.

The appellant opens and concludes the argument. Counsel must not read at length from briefs, records, or authorities. (d) Cross-Appeals and Separate Appeals. If there is a cross-appeal, Rule 28.1(b) determines which party is the appellant and which is the appellee for purposes of oral argument.

Unless the court directs otherwise, a cross-appeal or separate appeal must be argued when the initial appeal is argued. Separate parties should avoid duplicative argument. (e) Nonappearance of a Party. If the appellee fails to appear for argument, the court must hear appellant’s argument.

If the appellant fails to appear for argument, the court may hear the appellee’s argument. If neither party appears, the case will be decided on the briefs, unless the court orders otherwise. (f) Submission on Briefs. The parties may agree to submit a case for decision on the briefs, but the court may direct that the case be argued.

122 (g) Use of Physical Exhibits at Argument; Removal. Counsel intending to use physical exhibits other than documents at the argument must arrange to place them in the courtroom on the day of the argument before the court convenes. After the argument, counsel must remove the exhibits from the courtroom, unless the court directs otherwise. The clerk may destroy or dispose of the exhibits if counsel does not reclaim them within a reasonable time after the clerk gives notice to remove them.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr.

25, 2005, eff. Dec. 1, 2005.)