Appellate mediation in New Mexico: an evaluation.

• Author: Hanson, Roger A.

1. INTRODUCTION

   This article reports on the recently completed independent evaluation of the New Mexico Court of Appeals' mediation program. The Court began a mandatory mediation program in September 1998. A previous article in The Journal of Appellate Practice and Process explained in detail how and why the program was designed and generally commented on the program's progress. (1)

   Overall, the Court has been pleased with the number and percentage of cases that have been resolved and the feedback received from the bar. After two years, however, the Court determined it would be helpful to have an analysis conducted by an independent, outside expert. It believed an objective report would enhance the Court's ability to communicate effectively about the program with judges, the bar, the legislature, and the public. The New Mexico Administrative Office of the Courts sought an assessment of the program and secured a grant from the State Justice Institute to hire an independent evaluator. This article is based in large part on a report developed under that grant. (2)

   Improved ways of resolving disputes in the nation's state appellate courts have been perennial topics of conversation among judges, court staff, attorneys, alternative resolution experts, and scholars for the past twenty years. Are there faster, cheaper, and fairer ways to resolve a case than by a court decision based on a review of fully written briefs, oral argument, and a signed, written opinion? One of the leading alternatives is the use of mediation to encourage opposing attorneys and their respective clients to negotiate a voluntary settlement, followed by an agreed-upon dismissal of a case. Descriptions and evaluations of attempts to apply mediation are available in law reviews, journals, and other sources. (3)

   The basic premise of these various applications is that early intervention (i.e. prior to briefing) in the form of a settlement conference will stimulate communication among the attorneys and clients that would otherwise not occur. A mediator's presence will enable negotiations to begin and remain focused. Consequently, the participants will be better able to reach agreement on all or most of the unresolved issues. (4)

   Previous research has documented that this premise, to a great extent, is valid. Efforts to bring attorneys and the parties together do prompt communication. Mediators are viewed as effective facilitators, and the rate of settlement has indeed increased with the introduction of mediation, at least in some courts. Interestingly, however, one study found that when there is communication and informal negotiation among a control group of attorneys without a settlement conference, the rate of settlement is the same as it is in an experimental group with a settlement conference. (5)

   What remains to be determined is the element of early intervention. Is negotiation possible, probable, or frequent if and only if mediation is introduced early in the appellate process, say fifteen to thirty days or fewer after the filing of a notice of appeal? Must mediation be the first intervention by a court? The premises suggest that the answers to these questions are affirmative, because at the appellate level the room for fruitful negotiation is assumed to exist, if at all, only early in the appellate process.

   Mediation is considered much more possible at the trial level. Once a case has been appealed, the opportunity for mediation is constrained because appellate attorneys and their clients have developed entrenched positions. More importantly, the adversaries shore up their positions, especially after the basic costs of appellate litigation (i.e., brief writing) have been borne. Hence, settlement efforts in virtually all appellate courts are introduced shortly after the initial step of case filing in accordance with the untested assumption that bargaining prospects dwindle as the appellate process is extended. (6)

   The New Mexico Court of Appeals provides an opportunity to scrutinize the assumption that the possibility of settlement through mediation at the appellate level is short lived. The introduction of mediation in this Court occurs primarily after cases have been handled but unresolved through a summary procedure aimed at resolving more routine cases. If cases deemed appropriate for resolution under modified procedures are ultimately not amenable to summary treatment, then the prospect of mediation arises.

   Most cases are eligible for mediation. Exceptions include appeals involving a pro se party; a driver's license revocation; applications for stays; a petition for extraordinary relief; an incarcerated criminal defendant; or the state's mental health and children's codes. In the summer of 2000, the program began experimenting with pro se cases, on a strictly voluntary basis. (7)

   The New Mexico setting is one that traditionally is believed to provide very few targets of opportunity for mediation. New Mexico's cases for mediation seemingly are not amenable to negotiation (cases not resolved on the summary calendar) or are inappropriate because of issue complexity or difficulty (cases immediately placed on the regular calendar).

   The objective of the grant-funded evaluation was three-fold: (1) to see if the untested assumption concerning early intervention is essential to successful mediation; (2) to evaluate the consequences of mediation in New Mexico on settlement rates, to gauge the reactions of attorneys to this method of dispute resolution, and to consider possible time and cost savings attributable to mediation; and (3) to consider the implications the New Mexico experience has for other courts.

2. COURT CONTEXT AND BRAND OF MEDIATION

   The New Mexico Court of Appeals is a single, ten-judge, state intermediate appellate court with statewide jurisdiction over civil and criminal cases. The Court hears arguments primarily in Albuquerque and Santa Fe, the state capital, but occasionally sits in Carlsbad, Las Cruces, Las Vegas, and Roswell. The overwhelming majority of the Court's jurisdiction is mandatory, with approximately 1000 cases filed annually. Civil appeals, including administrative agency cases, are approximately 500 in number, with about 450 criminal appeals, and fifty discretionary petitions (interlocutory appeals). (8)

   Each judge is assigned one law clerk to assist primarily in opinion preparation. Law clerks generally are recent law school graduates and frequently hold their positions for one to three years. A pool of fifteen lawyers works for the Court as a whole. These central staff attorneys work on cases placed on the summary calendar as well as on fully briefed cases on the regular calendar.

   After a notice of appeal (or petition for review) is filed, the trial counsel also must file a substantial docketing statement that summarizes the facts, issues on appeal, a list of pertinent authorities, and references and citations to prior and related appeals. Once the record of trial court documents is received, a central staff attorney makes a recommendation to a judge in charge of the case calendars on whether the case should be handled as a summary matter or placed on the regular (or general) calendar.

   If the judge agrees that the case should be handled as a summary matter, a notice is sent to the parties proposing a preliminary, summary decision with legal citations to support this action. (9) Parties can then respond and raise errors of facts or law in the case. Another proposed disposition may be issued, or the calendaring judge may believe that the case is ready for disposition. In the latter instance, two additional judges are assigned to the appeal. They may agree with the single judge in charge of the summary calendar, and issue a summary opinion, or they may move the case to the regular calendar. They might move a case because the case is too complex, a transcript is required (summary proceedings do not provide for the filing of a transcript), or the disposition may require support by other than New Mexico authorities. Cases initially not recommended for or not resolved on the summary track are placed on the regular calendar for fully written briefs, possible oral argument, and a written decision.

   The summary calendar started in 1975 with an initial focus on criminal cases. By 1987 virtually all cases were potentially eligible. Court records indicate that approximately sixty percent of the Court's cases had been resolved on the summary calendar from 1990 to date. The impetus for mediation was a purposive and deliberative decision to increase both court efficiency and quality in the form of less time and cost to the attorneys and litigants. Appellate settlement conference programs historically have...