Appellate Mediation

​Settling cases that have gone all the way to appeal is not easy. The fact a case has gone that far often indicates that — for whatever reason — it was not one very amenable to settlement. Furthermore, a prevailing party in the trial court often feels quite invincible. And the party that lost in the trial court may find it hard to come to terms with the new power imbalance that exists once a judgment is in place. Add to that the hardened feelings that may have come out of a trial, and the prospects of reaching a negotiated resolution may seem daunting.

That said, mediations can and do take place during the appellate phase of litigation. And — with an experienced appellate mediator — cases can settle. Settlement brings finality, even if neither side gets everything they want. And it gives both sides an opportunity to control the outcome.

In some appeals, there is real uncertainty about whether the appellate court will reverse. The California Court of Appeal does so in almost one in five civil cases. Reversal rates can be higher in cases lost on the pleadings or summary judgment where a party was prevented from taking the case to trial. So settlement can be part of risk management.

But even if a prevailing party feels confident of an affirmance in full, settlement can still have advantages. It can save attorney fees. And an appeal usually lasts more than a year and sometimes two years or more. In many cases, the judgment is unenforceable while the appeal continues. So a mediated resolution can achieve a speedier remedy or payment.

In some cases, especially where there is a monetary judgment, the losing party in the trial court may simply not be able to meet the terms of a judgment. Rather than force a party into bankruptcy, or spend money on litigating enforcement, a negotiated implementation of a judgment can be worth exploring.

In other cases, the parties are going to have a continuing relationship due to common interests or would like to have one. And so ending the litigation with an agreement can create a better basis for moving on.

Additionally, a sometimes overlooked consequence of litigating an appeal all the way to the end is that a party may end up with a published decision setting a precedent that could have an unfavorable impact in another case or to the conduct of business outside of litigation. A negotiated end to an appeal avoids the risk of creating potentially harmful law.

In some ways, the fact that there is a judgment in place makes appellate mediation tougher than the ordinary variety. But with a skilled appellate mediator, that fact can be turned around as a force in favor of settlement. In pre-judgment mediations, parties are often tight with information and reluctant to share ideas. This is because — if the case does not settle — they will be back litigating the case in the trial court, and perhaps conducting discovery, immediately after. In many ordinary mediations, the parties barely interact. Sometimes, there is no joint session with everyone in the same room.

But appeals are different. There is no new evidence in an appeal. And at this stage in the case, the parties’ core arguments have been fully laid out. Yes, they may be refined or filtered for an appeal. But, given the scope and limits of appellate review, there is less opportunity for surprise. And so there is less reason to be guarded in communication with the opposing side.

So, rationally, this should allow for a more open conversation to identify issues and solutions. And to explore whether there may be some resolution that is better for both sides than allowing the appeal to run its course. But it can take some subtle diplomacy to allow that rational conversation to occur. And that is one area where a skilled appellate mediator can make a difference.

In short, appellate mediation can be an opportunity to move beyond “I’ll see you in court!” types of posturing and to have a conversation about options. And one in which the parties — not just their lawyers — are fully involved.

Generally, it makes sense to mediate fairly early in the appellate process. The more the parties spend on litigating an appeal, the less they may be inclined to settle.

Sometimes, however, the issues become clearer once the briefing has begun. And John Derrick recalls one oral argument at the California Court of Appeal when the acting presiding justice — openly not wanting to decide a case — urged the parties to try to mediate the outcome before the court had to render an opinion.

If, however, the parties are exploring settlement after briefing is complete, they should inform the court. The Court of Appeal does not appreciate investing resources in deciding a case that the parties are actively trying to settle.

Usually, appeals follow a final judgment in the trial court. However, in limited circumstances, they can occur much earlier. For example, decisions under California’s anti-SLAPP statute can mean that a case goes up on appeal when it is just getting off the ground. An early, pre-judgment appeal usually places a lawsuit on hold and can provide an opportunity for exploring settlement. The same can be true with writ proceedings, which are, in effect, a sort of early “emergency appeal” of a single, case-critical issue while a case is still being litigated in the trial court. So although appellate mediation normally comes after a final judgment, it can take place much sooner.

Very few mediators are also appellate specialists. And when picking a mediator, keep in mind that what is needed is not just knowledge of appellate law and procedure. It is also first-hand, recent familiarity with the human dynamics of appellate litigation from the trenches — especially interacting with parties whose case is on appeal.

When making contact with John Derrick, be sure to state whether you are interested in working with him as a consultant or a mediator. Once he consults on a case, he is conflicted from taking on a role as neutral mediator. To find out more about John’s general mediation practice, visit his separate website by clicking the button below.