Appellate Mediation: The Art of Settling After the Trial Court Has Ruled.

Author:DeWolf, Diane G.
Position:Appellate Practice

So the trial is over and you are either kicking up your heels or left holding your hat. If you are the one holding your hat, now is the time to start thinking about an appeal. Ask yourself, what is the standard of review on appeal? Does a legitimate basis for an appeal exist? Did sufficient legal errors occur that could get the case overturned on appeal? Can you even afford to appeal? Can you afford not to?

If you are the one kicking up your heels, it also is time to start thinking about the appeal, and similar questions apply: Did legitimate legal errors at trial affect the verdict? Were any errors harmless? Can you afford to litigate if the other side appeals? Do you want to? Can you wait to reap the rewards of your favorable judgment until after an appeal has been litigated?

The answers to these questions will determine not only whether the parties should pursue an appeal but also whether they should attempt an appellate mediation. Why would one engage in appellate mediation when they have already won their case? Why would one engage in appellate mediation when they are certain the appellate court will vindicate them on appeal?

It depends. While appellate mediation is not for every case or for everybody, it can often be a very effective tool to end the litigation. Let's face it. Appeals are expensive. If you are the appellee, perhaps relinquishing a bit of that substantial judgment would be worth saving the costs and time associated with the appeal and averting the risk of reversal. If you are the appellant, perhaps paying something less than the final judgment amount would be more favorable than having a second hat handed to you on appeal, which, in turn, you would have to fill with even more money for additional costs, fees, and interest.

That said, completing a successful appellate mediation is not easy. Once one party has tasted victory, the mediation dynamics change. Thus, both parties must be aware of their strong and weak points and be willing to compromise in order for an appellate mediation to succeed. The goal of this article is to offer a brief overview of appellate mediation procedures in Florida state and federal appellate courts, and also some practical advice to help make the most of the process.

Fifth District and 11th Circuit Mediation Procedures

Appellate mediation in Florida state courts is governed by FLA. R. APP. P. 9.700. The rules state that any Florida appellate court, including circuit courts sitting in an appellate capacity, "upon its own motion or upon motion of a party may refer a case to mediation at any time." (1) Of the Florida state appellate courts, however, only the Fifth District Court of Appeal maintains an organized mediation program requiring parties to participate in mediation with any frequency. Mediations are conducted by private parties at a place of their choosing. According to the Fifth District's website, more than 30 percent of cases sent to mediation in the Fifth District are resolved. (2)

In the U.S. Court of Appeals for the 11th Circuit, mediation is described as a "fundamental component" of appellate litigation. (3) The program is currently managed through the Kinnard Mediation Center (KMC) under Fed. R. App. P. 33 and 11th Circuit Rule 33-1. (4) KMC mediators are full-time employees of the 11th Circuit, and they conduct the mediation at no charge to the parties. (5) Eleventh Circuit mediations are conducted at KMC offices in either Atlanta or Miami or by telephone. (6) However, the parties may instead agree to hire a private mediator at their own expense. The 11th Circuit boasts that "hundreds of appeals are resolved through the mediation program" every year. (7)

* The Selection Process--As noted, of the five district courts of appeal, only the Fifth District has a formal mediation program. In Florida's other appellate courts, mediation is governed by FLA. R. APP. P. 9.700-9.740. The primary difference between the appellate rules and the Fifth District's process is in how cases end up in mediation. While courts other than the Fifth District may order the parties to mediation, (8) that is not by any means a regular occurrence. It is generally up to the parties to initiate a mediation.

When appellants file a notice of appeal in the Fifth District, if the case meets the threshold requirements for mediation--that is, the case is a final civil or family appeal, and the parties are represented by counsel--both parties will receive a mediation questionnaire. (9) The questionnaire must be completed within 10 days of the court's acknowledging the notice of appeal, and it must be served on opposing counsel. This form asks for the name of the lead counsel for each party, the nature of the case, the issues on appeal (which are not binding), the standard of review applicable to each issue, (10) and whether the case has ever been mediated. (11)

Both parties must also complete a confidential mediation statement, which is not served on opposing counsel but filed only with the court. (12) In this form, the parties indicate whether they believe mediation is appropriate or inappropriate and briefly explain why. (13) The statement and questionnaire are then reviewed by one of three sitting judges (Judges Palmer, Kerry, or Evander at the time this article was drafted) to determine whether the case should be sent to mediation. (14)

If a case is...

To continue reading