Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Tuesday, December 10, 2013

What Is So Appealing About Appellate Court Mediation?

Most appellate courts have court-connected mediation programs.  Sometimes it is voluntary, and in other courts it is mandated.  I am generally a proponent of mediation, even of the mandatory variety.  Why?  Because mandating that parties discuss possible resolution does not compel them to actually agree to anything.  The parties are free to walk away from the table at any moment that the talks become unfruitful.  Mandating mediation also forces the parties - who might otherwise perceive it as a weakness to introduce the topic of settlement to the opposition - to discuss resolution without a feeling of losing strength.  While some argue that the cost of paying counsel to attend a mediation the party is uninterested in attending is problematic, I disagree.  The mediation is still valuable in that it gives the attorney and his/her client another opportunity to discuss and develop case strategy, and it also gives them a window to look more closely at the opposition's case and strategy.  Thus, even if the mediation reaches impasse, the process was likely still valuable to everyone involved.  

However, my love-fest with mediation starts and stops at the trial court level.  Mediation is a wonderful  tool for resolving disputes before a lawsuit is filed.  It is great for resolving disputes during discovery and before dispositive motions are filed.  It is apropos for resolving disputes just prior to trial, especially if an unpredictable jury is involved.  But what about after the verdict?  What about after the case is dismissed on summary judgment?  Is there any value in appellate court mediation?

I suppose if the appellate court mediation is voluntary, there is no problem.  However, when it is compulsory, I see less efficacy in it.  Even considering the statistical evidence suggesting that approximately 40% of appellate court mediation's will resolve the case (roughly half the settlement rate of those that take place prior to the case reaching the appellate court level), I still wonder if the potential benefit trumps the frustration that can emanate from the process.  

The primary issue is that by the time the case reaches the appellate court level, one party has won and the other has lost.  This naturally emboldens the winning party to retract any prior settlement offers on the table in order to present a much more inferior offer.  This, in turn, tends to frustrate the already frustrated losing party and makes him/her more prone to continue the fight, despite the fact that the odds of getting the trial court's decision overturned is likely about 10-15%.  Another issue is that the odds are fairly high that at some point prior to the appeal the parties had already attempted to negotiate or mediate the case one or more times.  Is mandating another attempt at resolution simply overkill?

While it is understandable why some appellate courts would experiment in mandatory mediation processes (reducing the docket being an important consideration), it seems that for the 60% of cases that do not settle,  the tension between the parties will only be heightened by the futile attempt.  Perhaps mandatory mediation is best suited for pre-appeal disputes.  

What say you?

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I think there are great benefits in appellate mediation, but I'm less sanguine about making it mandatory in all cases (or even all civil cases). The primary reason is the low success rate. I'm not certain that the benefits outweigh the costs, whether those costs imposed on all litigants or covered by the court. Resolving 40% of cases is an excellent result, but I'm not sure it's worth paying for or forcing litigants in all cases to pay for the process.

I don't think the low reversal rates, existing judgment, or prior settlement attempts are significant reasons to avoid mediation. The first two merely establish the field for the negotiation, and the last seems irrelevant given that the negotiations took place under different circumstances.

Perhaps the answer is a robust appellate mediation process with effective identification of cases where voluntary or mandatory mediation are likely to be successful. If such a thing is possible, that is.

Posted by: David R. Cleveland | Dec 10, 2013 8:02:25 PM

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