The appeal of appellate mediation: making the case for an attractive dispute resolution tool.

• Author: Bellon, Jeanette

One may wonder how and why appellate mediation could ever serve as a practical resolution tool. Presumably, settlement negotiations were not fruitful before trial. One party has already received a favorable ruling in the case. The answer, though sometimes surprising, is fairly simple. A global case resolution through appellate mediation can save both the parties and the courts considerable time and valuable resources (1) and can promptly bring to an end a dispute that could otherwise potentially drag on for years to come. (2) The goals of this article are to provide a brief overview of the appellate mediation programs currently being utilized in Florida's federal and state courts of appeal, to dissipate any negative preconceptions regarding appellate mediation, and to suggest that, in certain cases, appellate mediation can serve as a valuable tool in settling a dispute.

The Benefits of Appellate Mediation

Appellate mediation can serve various functions depending on the specific circumstances and nuances of a particular case. In many cases, appellate mediation brings the parties together in order to educate them on the appellate process in general and to inform them of how appellate courts are likely to address the issues on appeal. An appellate mediator is likely to bring to the parties' attention the fact that an appellate court will not re-try the case or take additional evidence, and will often point out to the parties that the appellate court's jurisdiction is limited in scope to those narrow issues brought before it under a specific legal standard of review. (3) This opportunity to discuss the ramifications of the applicable standard of review, the merits of the case from an appellate point of view, and the inherent risks of proceeding on appeal can be invaluable in helping to remove a client's unrealistic expectations. (4) In this way, it is similar to mediation at the trial level.

In addition, appellate mediation provides a forum to educate each party of the fact that the appellate court is likely to place a strong presumption of correctness on a trial court's order or judgment entered after a jury's verdict and to make clear that whenever a party pursues a case on appeal, he or she is facing an uphill battle. (5) Just like juries and trial courts, appellate courts can be unpredictable. Even in cases that may appear to be open-and-shut, the inherent risk in an appellate proceeding cannot be disregarded and should not be ignored.

Another benefit of appellate mediation is that even though the issues on appeal may be quite limited, there is nonetheless the potential for exploring a global resolution of an entire dispute. (6) Often, the most effective appellate mediations focus on resolution of a whole case and include any collateral issues or anticipated future litigation between the parties, rather than strictly focusing on the narrow issues presented in the appellate proceeding. (7) In this way, an appellate mediation offers a remedy that cannot be crafted by the appellate courts, which are constrained to decide only those limited issues before it. A global resolution not only saves the cost of the appeal, but also saves the additional expenses associated with supplemental litigation. (8) Appellate mediation also often helps parties to recognize that if a case is not resolved and the appellate process runs its course, there may be extensive litigation costs incurred. (9) In some cases, through the mediation process, a party may come to realize that he or she cannot afford to pursue an appeal and that the cost of victory may be...