Appellate mediation in Pennsylvania: looking back at the history and forward to the future.

• Author: Newman, Sandra Schultz

1. INTRODUCTION

   In recent years, appellate courts have increasingly integrated alternative dispute resolution methods into their procedures in an effort to reduce ever-expanding caseloads. The Pennsylvania Commonwealth Court, for example, adopted an appellate mediation program in September of 1999 and reports that it has been successful. This Article includes a summary of the foundations of appellate mediation that traces its primary development in the federal courts of appeal, a discussion of the extension of appellate mediation programs to state appellate courts, and an examination of the specifics of the Commonwealth Court's program. In its final section, the Article concludes that the Commonwealth Court's report of its program's success is well-founded and advocates for extension of that program.

2. FOUNDATIONS OF APPELLATE MEDIATION

   1. The Second Circuit

      In 1974, Chief Judge Irving R. Kaufman of the Second Circuit instituted the first appellate alternative dispute resolution (ADR) program, hoping to expand upon the successes of ADR in reducing the caseload of courts of original jurisdiction. (1) Chief Judge Kaufman created the Civil Appeals Management Plan (CAMP), which had four main goals: (1) to preserve judicial resources, most notably time, by encouraging dispute resolution without judicial involvement; (2) for cases not subject to ADR, to reduce the time from the filing of an appeal to its disposition; (3) for cases that ADR will not be able to resolve, to help clarify the ultimate issues in the case; and (4) to quickly consider basic procedural motions without expending judicial resources. (2) Originally, the CAMP program employed one separate full-time Staff Attorney (also called staff counsel), who searched through the Second Circuit's appellate docket for the cases that appeared to be most conducive to settlement. (3) The Staff Attorney also conducted the settlement conference and served as program administrator. (4)

      The CAMP program was the first response to Federal Rule of Appellate Procedure 33, adopted in 1967, (5) which now provides as follows:

      The court may direct the attorneys--and, when appropriate, the parties--to participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement. A judge or other person designated by the court may preside over the conference, which may be conducted in person or by telephone. Before a settlement conference, the attorneys must consult with their clients and obtain as much authority as feasible to settle the case. The court may, as a result of the conference, enter an order controlling the course of the proceedings or implementing any settlement agreement. (6) Pursuant to CAMP, as originally designed, the Staff Attorney would peruse all new appeals for cases that would most benefit from a settlement conference. For those cases that the Staff Attorney determined to be candidates for a successful conference, the Staff Attorney would issue a scheduling order, which would delineate the date of argument, the date of the CAMP conference, and the due date for filing briefs and the record. (7) The Staff Attorney, counsel for the parties, and in some situations, the parties themselves, would participate in any number of conferences, each lasting from one to several hours. (8) However, the parties always maintained their right to proceed with an appeal if they were unable to resolve the dispute at the conferences. (9)

      The CAMP program remains the cornerstone of ADR in the federal appellate courts. The Second Circuit currently employs three Staff Attorneys, each of whom conducts approximately three conferences each day. (10) Whereas the Staff Attorney once culled the docket for potential CAMP participants, the court now requires all appellants in civil matters, with the exception of pro se and habeas corpus cases, to submit a pre-argument statement within ten days of filing an appeal. (11) In the vast majority of cases, the parties will appear before a Staff Attorney for a mandatory conference within three weeks of the date on which the appeal is docketed. (12) If, after the mandatory conference, the Staff Attorney believes that the case will not settle, the court will schedule oral argument. (13) Otherwise, the Staff Attorney will schedule another conference; this process will continue until (1) the parties settle; (2) the Staff Attorney determines that additional conferences will not have any benefit; or (3) the case is otherwise dismissed. (14) By 1985, settlement conferences reduced the number of cases argued before the Second Circuit by almost twenty percent. (15) By 1995, half of all appeals to the Second Circuit were resolved prior to argument. (16)

   2. The Sixth Circuit

      The judges on the other federal circuits were so impressed by the success of CAMP that they began to institute similar programs in the early and mid-1980s. (17) The first to follow the Second Circuit was the Sixth, which modified the CAMP program to address geographic differences between the Second and Sixth Circuits. Whereas the Second Circuit is small in area and has a large caseload, the Sixth Circuit covers a much larger swath of the country but addresses far fewer cases. (18) Accordingly, the Sixth Circuit conducts most conferences by telephone and focuses more on encouraging settlement than on case-management issues. (19) Additionally, while the Second Circuit attempts to evaluate the parties' arguments, often by issuing a non-binding advisory opinion, the Sixth Circuit favors an interest-based or facilitative approach, in which the Staff Attorney will discuss the parties' interests with each of them separately. (20)

      The geographic spread of the Sixth Circuit and its mediation program's resultant reliance on telephone conferences posits another interesting question: Are telephone or videoconferences as effective as live mediation? Telephone or video conferences allow persons in different places to effectively be at the same place at the same time without having to make the expenditure in time and money to meet at some potentially far-away location; however, a common perception is that participants in live conferences are more inclined to settle. While this article does not address these issues, they are interesting to consider nonetheless. The authors look forward with interest to the results of others' scholarly investigation of this topic.

   3. The Third Circuit

      The Third Circuit, based in Philadelphia, instituted an appellate mediation program in 1995 that is very similar to the Sixth Circuit's program. Virtually all civil matters, other than cases involving prisoners or pro se litigants, are eligible for appellate mediation. (21) The Program Director selects from the list of eligible cases those that involve non-frivolous issues that are capable of extra-judicial resolution. (22) From May through October of 1995, parties filed 422 cases eligible for appellate mediation; from this group, the Program Director selected 107. (23) This rate of scheduling roughly twenty-five percent of eligible cases for mediation has remained relatively consistent throughout the life of the program. (24) Cases can also be referred to mediation by the parties or by the court itself immediately prior to or after oral argument. (25)

      Approximately two weeks after the parties are notified that their case has been selected for appellate mediation, confidential position papers, not in excess of ten pages, are due to the mediator. (26) These papers must articulate counsel's views concerning the possibility of settlement, summarize prior settlement discussions (if any), and identify other ancillary issues that must be resolved in order to effectuate any type of settlement; these confidential statements are never made available to the court or to opposing counsel. (27) The Program Director conducts approximately half of all mediation conferences and the senior circuit judges mediate the remainder. (28) No more than twenty percent of all initial conferences are conducted by telephone; unless distance or other factors preclude them, in-person conferences are preferred. (29) While the briefing schedule and other appellate deadlines theoretically remain in effect while a case is being mediated, in reality, the clerk of court usually does not set a briefing schedule until the matter is no longer in mediation. (30) However, in instances where pending mediation will affect the briefing schedule or other appellate deadlines, the mediator will usually recommend staying all court-related proceedings until mediation is concluded. (31) Cases for which mediation does not result in an ultimate settlement return to a full briefing schedule, usually within sixty days of the original reference to mediation. (32)

   4. The Ninth Circuit

      Like the Sixth Circuit, the Ninth Circuit does not engage in case management. The Ninth Circuit takes the facilitative approach one step further, however, by attempting to focus the parties more on the real-world implications of a case, de-emphasizing the legal aspects. (33) Facing many times more cases than the Sixth Circuit, the Ninth Circuit's Staff Attorneys are far more selective in determining which cases to schedule for appellate mediation. (34) The Staff Attorneys utilize a two-step process to select cases, (35) and "[b]y hand-picking the cases they handle and devoting their full attention to settlement, the Ninth Circuit's mediators have been able to accrue an impressive seventy-three percent settlement rate." (36)

   5. The D.C. Circuit

      The D.C. Circuit instituted a unique program that relies on local attorneys who volunteer to mediate disputes. (37) The court approves experienced attorneys to participate as volunteer mediators and then trains them in mediation skills in an intensive program. (38) While using members of the local bar in mediation has always been a staple of trial court...