Pre-argument settlement at the Michigan Court of Appeals: a secret too well kept.

• Date: 22 September 2005
• Author: Fetty, Jeremy L.

1. INTRODUCTION

   Unbeknownst to many practitioners, the Michigan Court of Appeals, like several other state and federal appellate courts, uses facilitative mediation to resolve or simplify issues on appeal. The use of meditation at the appellate level is relatively new: It has, for the most part, developed since the late 1980s and nearly 1990s, although a pioneer mediation settlement program has been used by the United States Court of Appeals for the Second Circuit since 1974. (1) Generally speaking, most lawyers do not view the appellate level as a time at which settlement or mediation should be considered. However, views have begun to change in the past fifteen years. Recent positive experiences with, and recent publicity about, alternative dispute resolution in general, coupled with federal appellate-court settlement program successes, have led several state appellate courts to adopt settlement programs.

   Behind this trend seems to be appellate courts' realization that adverse trial-court decisions can cause appellants to reconsider what they once may have thought of as strong cases, while appellees may wish to avoid both the risk of reversal and the time-consuming and expensive appeal process. (2) And appellate courts with increasing dockets have welcomed mediation to promote and expedite pending appeals. (3)

   The Michigan Court of Appeals Pre-Argument Settlement Program (4) is the focus of this article. It was initiated and is maintained for the purpose of resolving parties' disputes, which in turn helps to reduce the number of cases on the Court's docket. Experience shows that the Program can reduce costs for the Court and the parties, and can produce a settlement that satisfies all involved. This article provides an overview of the Program, presents the settlement rates for 1999-2004, estimates the cost savings attributable to those settlements, and concludes that the Program is a success.

2. BACKGROUND OF THE PROGRAM

   The Program started as a pilot program that ran from 1995-1997. (5) The Court wanted to examine whether a settlement program would be feasible--and successful--for Michigan appeals because, although settlement programs were proven successful in federal appellate courts, the results in state courts were mixed. (6) During the pilot period, volunteers from the state bar association's Appellate Practice and Alternative Dispute Resolution Sections served as volunteer mediators in the 120 cases assigned to the pilot program. (7) The emphasis was on resolving complex or "box" cases (those in which the record is contained in one or more boxes) through settlement before they were sent to research, which would result in significant cost and time savings for the Court. (8) In the first year, forty percent of the cases placed in the pilot program settled, and in the second year, thirty-two percent settled. This compares to a normal dismissal-by-stipulation rate of seventeen percent, which figure is presumed to include primarily cases that have settled. (9) The Court, apparently considering the pilot program a success, began planning for a permanent program.

   By January 1998, the Program was official, and by February 1998, it was fully operational. (10) Once it was official, a push was made to include a more representative sample of cases in the Program. (11)

   Originally, two staff attorneys conducted the Program. In late 2001, the Program was restructured; the Settlement Office is now staffed by one full-time attorney, who is the director of the Program, and an administrative assistant. (12) Also in 2001, the Settlement Office began using volunteer circuit court judges to mediate complex cases, and in 2002, it began using volunteer family law mediators to mediate domestic relations cases. The Program goal is for a settlement rate of about a third of the cases placed in the Program. (13)

   A Settlement Committee consisting of three Court of Appeals judges, the Settlement Director, and the Research Director oversees the Settlement Office, (14) reviewing operations, policy, and the potential development and expansion of the Program. The Committee then reports to the Court its suggestions for modification or improvement. (15)

3. CURRENT PRE-ARGUMENT CONFERENCE PROCESS

   1. Case Selection

      The Settlement Office may direct a pre-argument settlement conference in any case, but certain types of cases--those involving termination of parental rights, paternity cases, cases in which parties are in pro per, and custody actions--are generally considered not appropriate for mediation. (16) Of the cases eligible, those selected for the Program are placed in two categories: general civil matters and domestic relations matters. Because the selection process is somewhat different for each type of case, they will be treated separately below.

      1. General Civil Matters

         Cases are typically selected in one of three ways: (1) the Settlement Director reviews the parties' docketing statements in order to determine whether a case is suitable for settlement; (2) certain types of negligence cases are placed in the Program automatically when the appeal is filed; or (3) the attorneys for any party may call the Settlement Office in confidence and request that a pending appeal be considered for a settlement conference. (17) In the past some judges have referred some cases after oral argument, but this is rare, and it is not considered the best use of the Program because settlement is unlikely at that point. (18) Approximately ten percent of the Court's civil caseload is selected for settlement conference. (19)

         An attempt is made to get the cases into the Program prior to any briefing, which gives the parties a financial incentive to use it because they can save money by not proceeding further into the appellate process. (Incentives for settlement may diminish once the expenses associated with briefing the case and preparing for oral argument have been incurred.) The Office tries in consequence to act quickly: Docket statements filed with the clerk are electronically imaged and transmitted in that form to the Settlement Office within twenty-four hours. (20) Completing the docketing statement requires a party to indicate whether settlement negotiations have been scheduled or conducted, and whether settlement is unlikely, and the party can also fill in a space provided for further explanation. However, a party's indication that a case is unlikely to settle does not mean that it will not be selected for the Program. Staff attorneys determine which cases are suitable for the Program after reviewing all of the information in the docketing statements. (21)

         Cases that are routinely placed into the Program include those docketed as property and real estate, contracts, labor relations, no-fault automobile insurance, medical malpractice, personal injury from automobile negligence, other personal injury, other damages actions, estates and probate, and general civil cases. (22) Verdicts and judgments in favor of plaintiffs, default judgments, dismissals, and cases that are "not a lock" are prime cases for settlement; these are always carefully considered for participation in the Program. (23)

      2. Domestic Relations Matters

         The selection of domestic relations cases for the Program is handled differently. When an appeal is filed in a domestic relations case, the docketing statement and any judgment or order that has been submitted are sent by the Settlement Office to domestic relations screeners, who are volunteers with experience in family law matters. (24) Domestic relations screeners have a three-to-five-day period in which to determine whether a particular case is appropriate for settlement, (25) and presently, only domestic relations matters involving property and monetary disputes are considered for the Program. (26) If a screener determines that a case is appropriate for settlement, he or she will recommend that it be placed in the Program. (27) The Settlement Office then submits the case to a volunteer domestic relations mediator for a settlement conference.

   2. Proceedings After a Case Is Selected for the Program

      When a case is selected, an order is entered placing the case in the Program. (28) The Court sends the attorneys or parties a package containing that order, instructions, information on the Program, and a scheduling letter identifying the location of the conference. (29) In domestic relations cases mediated by volunteer domestic relations mediators and certain complex cases that are mediated by volunteer circuit court judges, the designated mediator or judge also receives a package detailing the case. That package also contains the order placing the case in the Program. (30)

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