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Settlement is still an option – a primer on appellate mediation
By Patrick R. Kingsley

July 30, 2020

Trial judges love when cases settle. So they do what they can to make it happen. But we do not normally think the same is true of appellate judges. Once the trial court enters judgment and the case goes up on appeal, many assume the appellate court will not do much to try to get the parties to settle. But that is not necessarily the case. In a quiet nook of many appellate courthouses, you will find a mediation program. These small programs – which trace their roots to a pioneering mid-1970s program created by the U.S. Court of Appeals for the Second Circuit – give parties a chance to settle while their case is on appeal. As an added bonus, most of these programs are cost-free to the participants.

Appellate mediation programs come in different shapes and sizes, but most are like the one employed by the U.S. Court of Appeals for the Third Circuit. It employs a staff of a few full-time mediators. The mediation staff uses appellate case intake forms to decide whether a case is suitable for the program. Parties also can ask the staff to mediate their case. If selected, the Court automatically defers briefing. The parties submit a short position paper and then participate in one or more in-person mediation sessions with a mediator. Lead counsel and a person with authority to settle attend for each party. The in-person mediation typically starts with a general session of all parties, followed by separate “caucuses” between the mediator and each party. The process mostly mimics the familiar mediation process at the trial court level.

Other courts have similar programs. The Pennsylvania Commonwealth Court’s mediation program is like the Third Circuit’s, except a senior judge of the Court acts as the mediator and mediation does not automatically defer appellate briefing. The District of Columbia Circuit uses accomplished and trained local lawyers as mediators, and is highly selective about the cases it selects for the program.

Not every appellate court has a mediation program. For example, neither the Pennsylvania Supreme nor Superior court has one. The former never did, and the latter ended its program years ago. And even for those courts that do have a program, its scope is typically limited to civil cases with a damages dispute where each party has an attorney.

Where they exist, are appellate mediation programs successful? The answer is a matter of perspective. While statistics are hard to come by, the programs do not appear to settle most cases. Part of that has to do with mediator quality. Just as with trial-level mediators, some appellate mediators are better than others. And some mediators are able and willing to invest significant time and energy trying to get a case settled, while others are only able or willing to make a more modest attempt.

To be fair, appellate mediators face an uphill battle. By the time a case is on appeal, the parties’ positions have hardened. One side has won, the other has lost. The winner is confident of victory on appeal, as appellate courts affirm most of the time. The winner may also have in hand a well-reasoned and -written trial court decision. And, of course, by the appeal, both sides have sunk plenty of money into attorney’s fees – which they could have used to fund a settlement. These factors do not make for great settlement dynamics. For these reasons, it does not seem to make much sense to force parties into an appellate mediation – as some courts do. There is nothing wrong with reaching out to encourage the participation of parties who could benefit from mediation. But forcing them into it often results in a waste of everyone’s time.

Even with these hurdles, appellate mediation programs can post surprisingly good results. New Jersey’s Civil Appeals Settlement Program recently reported a success rate of over 40%. Statistics from other courts show some appellate mediation programs have settled about half of the referred cases. These figures, while impressive standing alone, are all the more so given settlement attempts were surely made in these cases at the trial court level – and they all failed. So it would seem it is worth continuing the modest investment needed to sustain appellate mediation programs.

The settlement statistics also reveal that parties to an appeal understand that litigation risks and realities still exist on appeal. Affirmance is not guaranteed; there is always the risk that the court might reverse the ruling below. It could also vacate and send the matter back for a new trial, putting the parties back at square one. The trial court may have written a poor-quality decision, or its conclusion may be on shaky legal ground. And, of course, appeals are not free, so there is still the fact of attorney’s fees to consider. Settling during an appeal replaces these risks and costs with certainty and finality.

So the next time you have a case on appeal, do not write off the possibility of a court-aided settlement. Appellate mediation programs – admittedly of uneven quality, and not always successful – can help parties who are interested in avoiding the risks and costs associated with a final decision on appeal.

About the Author
Patrick has tried more than 40 cases involving diverse legal claims and fact patterns in several different forums across the country. As a trial lawyer, he has tried both jury and non-jury cases and has represented clients in arbitrations, mediations and hearings before administrative law judges and referees. Patrick is a fellow of the American College of Civil Trial Mediators. He has also served as an adjunct professor at Rutgers University School of Law, instructing students on trial advocacy skills.

Information contained in this publication should not be construed as legal advice or opinion or as a substitute for the advice of counsel. The articles by these authors may have first appeared in other publications. The content provided is for educational and informational purposes for the use of clients and others who may be interested in the subject matter. We recommend that readers seek specific advice from counsel about particular matters of interest.

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