What Should Appellate Mediation Look Like?:
An Analysis Appellate Mediation Program


I.    INTRODUCTION
   
    For a case to reach the appellate level is a rare feat indeed.  It has been estimated that nearly ninety-five percent of all cases will settle before trial.  Of the remaining five percent, only the most difficult and stubborn will proceed to the appellate level.  This creates a unique environment for alternative dispute resolution (ADR).  Although many of appellate law’s unique features appear to run contrary to the viability of the mediation mechanism, experience has revealed that appellate mediation programs have overall been widely viewed as successful.  Indeed, parties and their attorneys have both strong legal and non-legal incentives to submit to appellate mediation.

   Federal and state courts have responded to this surprise need by establishing a variety of appellate mediation programs.  While the goal of these programs are the same—to increase settlement in an economically efficient way—courts have designed their programs differently.  This paper will analyze a selection of these features and determine which variation best fits the goals of appellate mediation.  Part II will give an historical overview of the development of appellate mediation in both the federal and state courts.  Part III will then examine and analyze three select program features, eligibility, voluntary v. mandatory and selectivity, and part IV will conclude.   

II.     HISTORICAL OVERVIEW OF APPELLATE MEDIATION

   A.    Appellate Mediation in the Federal Courts

   The genesis of appellate mediation can be traced back to the federal courts.  In 1974, Chief Judge Irving R. Kaufman of the Second Circuit implemented the Civil Appeals Management Plan (CAMP) pursuant to Federal Rule of Appellate Procedure Rule 33 (FRAP 33).   FRAP 33 permissively directed the appellate courts to construct mediation programs by granting them the power to compel attorneys and their parties to participate in conferences designed to induce settlement.  Kaufman’s program had four major objectives: (1) to preserve judicial resources, most notably time, by encouraging the resolution of appeals without judicial involvement; (2) to expedite the consideration of appeals not subject to the program; (3) to help clarify the issues on appeal; and (4) to quickly dispose of minor procedural issues.  At its inception, CAMP employed a single Staff Attorney who rummaged through the Second Circuit’s appellate docket and selected cases that they felt were most appropriate for mediation.  The parties were then compelled to meditate and the Staff Attorney served as the neutral.   The selective system, however, was short-lived.  By 1977, additional Staff Attorneys were hired and almost all cases were sent through CAMP for at least one attempt at mediation.

   CAMP has widely been considered a success.  By 1995, half of all appeals in the Second Circuit were being resolved prior to oral argument.  Indeed, studies indicate that CAMP reduces the workload by two circuit judges for only a third the cost.  As a consequence, the amount of time for a case to move through the Second Circuit has been severely reduced.  In 1983, almost half of appeals submitted to CAMP were disposed of within ninety days of docketing, as compared to one-fifth of a control group that were not subjected to the program.

    Impressed, other federal circuits implemented their own mediation programs, and today such programs are present in all of the thirteen federal courts of appeals.  These programs, however, differ widely in structure and procedure, with each experiencing its own degree of success.
    
   B.    Appellate Mediation in the State Courts
   Appellate mediation programs have not been limited to the federal courts; the states have followed suit.  For example, California’s Third District Court of Appeal established a mediation program almost identical to the Second Circuit’s CAMP.  The program was a success, settling thirty to forty percent of its cases.  Nevertheless, it was cut in 1993 as part of a statewide budget cut.  Other early state appellate mediation programs faced similar fates due to lack of judicial support and skilled mediators. 

   Despite these set-backs and false starts, state courts have achieved success rates similar to the federal circuits.  For example, the Missouri Court of Appeals for the Eastern District, the oldest continuously operating state appellate mediation program in the country, has a history of settling forty percent of its cases.  Furthermore, the National Center for State Courts has reported that state mediation programs double settlement rates, reduce settlement times, and are viewed favorably by participating parties.  These statistics and findings have created an irresistible bandwagon, which more and more states are jumping on to.  Today, at least thirty-three states have implemented some type of appellate mediation program in one or more of their appellate courts.         

III.    ANALYSIS OF APPELLATE MEDIATION PROGRAM FEATURES

   Despite varying widely in structure and procedure, all appellate mediation programs “attempt to resolve the parties’ dispute in a non-adversarial forum that is less resource intensive that the traditional trial.”  In other words, appellate courts have twin goals: facilitating settlement and limiting the expenditure of judicial resources. Appellate courts attempt to recognize this by tailoring their programs’ features in a way that is conducive to settlement and financially worthwhile.  Thus, while appellate mediation programs are similar, noticeable differences remain.  It is therefore necessary to identify these structural and procedural variations and analyze which approaches best achieve appellate mediation’s overall goal.       

   A.    Eligibility
   The first question for any appellate mediation program is what types of cases may be subject to it.  As would be expected, eligibility of a case for mediation at the appellate stage must be determined by the nature of the case itself.  Indeed, if one of the goals of mediation is to preserve judicial resources, then it would be counterproductive to submit cases to mediation when settlement is impossible.  For example, consider cases in which a public entity is involved (boards of county supervisors, governing boards of water or utility districts, city councils, etc.).  “[R]epresentatives who attend mediation are often not the officials who must approve any settlement … .  This can mean that the decisionmakers who may have to ratify any tentative resolution lack first hand knowledge of the proceedings and of the underlying dispute.”  In other words, the representative of a public entity usually lacks the authority in mediations to negotiate and settle a case. 

   In addition to excluding public entities, there is an overwhelming public policy ban against pro se and criminal cases.   Pro se ineligibility stems from “the fear that a pro se litigant might consider a mediator as either an advisor or as a court authority figure exerting pressure upon the litigant to settle.”  For obvious reasons, criminal appeals are treated in a similar manner.  After all, a jury has already determined the appellant’s guilty and “the justice system exists primarily to determine guilt or innocence, not to meet somewhere in the middle.”

   Nevertheless, it is my opinion that no outright ban on any type or category of case should exist.  Indeed, such a ban does nothing to further the twin goals of appellate mediation.  For example, take the ineligibility of cases involving public entities.  Closing the door on these types of cases without first reviewing of the legal issues and merits is silly.  After all, public entities might recognize the value in appellate mediation programs and request their case be submitted.  In fact, there is a current trend in federal and state governments to make use of such ADR mechanisms.  Furthermore, FRAP 33, which governs the federal courts, expressly provides that “attorneys must consult with their clients and obtain as much authority as feasible to settle the case.”  Therefore, there are certainly cases involving public entities that would benefit greatly from appellate programs.  Moreover, since few, if any, judicial resources are consumed by merely labeling a case as eligible, the twin goals of appellate mediation are met.

   I take a similar position with civil pro se appeals.  Although I recognize the concern, steps can be taken to minimize any balance of power concerns.  A program similar to that of the Third Circuit should be adopted.  Like all circuits, the Third Circuit will not mediate a case if one party is unrepresented.  However, under its appellate mediation program, “[d]irectors may appoint counsel to represent a litigant on a pro bono basis for purpose of mediation only.”  Consequently, pro se litigants also have the opportunity to enjoy the benefits of appellate mediation.  But the program must also be worthwhile.  Not surprisingly, studies indicate that, “[w]hile the settlement percentage does not match the percentage in regular, counseled cases, the Program has produced enough settlements to save significant time for the [Third Circuit] … .”  Consequently, because the program facilitates settlement in an economically valuable manner, there is no reason other appellate courts should not adopt it as well.

   Criminal cases are another matter.  Some precautions must be taken.  However, under a restorative justice model, some criminal appeals might still be appropriate for mediation.  For example, take a convicted criminal who could escape punishment on appeal through some minor procedural error or official misconduct.  Wouldn’t it be better to mediate the case to ensure that the offender receives at least some form, albeit a reduced form, of punishment?  Unfortunately, no appellate court that I am aware of has introduced such a program, so the value of the idea remains unknown.
   
   B.    Voluntary v. Mandatory
   An appellate court must also determine whether their mediation program should be voluntary or mandatory.  As a general statement, voluntary programs at the appellate level have been largely unsuccessful.  Experience suggests that few litigants will voluntarily submit to mediation after reaching the appellate courts.  Indeed “[t]he reluctance to volunteer for ADR may have been caused by the lack of a cultural environment receptive to the idea of appellate mediation, the absence of adequate promotion and education or the failure of confidence in the worthwhileness of the effort.”  This makes sense.  After all, “[s]ettling a case while it is pending on appeal … seem[s] counterintuitive.  There is already a winner and a loser, so what would motivate them to compromise and settle at this point?”  However, as previously stated, “appellate cases remain ripe for mediation and do [in fact] settle on appeal.”

   Thus, mandatory appellate mediation programs, have been much more successful.  Scholars believe this is the case “because attorneys will be able to ‘overcome client resistance to the idea of settlement without raising a question of the attorney’s loyalty to the client in suggesting mediation.’”  Indeed, a majority of appellate mediation programs have adopted mandatory programs.  Some courts, however, provide a back door by “provid[ing] for removal of a case from the program either at a party’s request or at the discretion of the mediator.”

   In my opinion, appellate courts should employ a mandatory program, with special consideration given to willing parties.   Such a program would yield a higher proportion of settled cases in a more cost-efficient manner.  For example, although mediation traditionally is voluntary, nobody can deny the success mandatory mediation has had.  Indeed, it is important to remember that “[m]andatory appellate mediation does not result in a binding settlement unless the parties agree, and the parties retain their right to pursue an appeal following the conclusion of mediation.  Therefore, a mandatory mediation program is not as harsh as it appears … .”

   C.    Selectivity
   When an appellate court chooses to implement a mandatory appellate program, then it also must determine how to select which cases to compel to mediation.  There are three schools of thought.  First, some courts believe that it is too difficult to predict the probability of successful mediation from one case to the next.  Therefore, they make selections “based solely on general eligibility requirements; in other words, if a case is eligible to be mediated then the case will be mediated.”  For example, in the First, Second, Sixth and Federal Circuits, nearly all civil cases are submitted to mediation.  Second, some appellate courts recognize the difficulty in selecting cases, but do not wish to spend the resources it takes to submit every one.  Thus, these courts select by randomly drawing a fixed number of appeals from a pool of eligible cases.  Finally, some courts compel parties to mediate only “in cases that appear likely to achieve settlement on some or all of the issues on appeal.”

   In regards to selection, a highly selective screening process should be the standard.  While over-inclusive and random selection features appear to be more equitable, selecting cases with little or no chance of success can do more harm than good.  Forcing parties to spend time, and therefore money, mediating cases with a low probability of settlement will generate resentment towards the program.  Thus, attorneys experienced at the appellate level will be less likely to mediate in good faith, even when settlement in their case would be ideal.  Additionally, one commentator has suggested that over-inclusive appellate mediation programs harm not only the program itself, but the entire field of ADR.  According to Ruvolo, many private attorneys acting as mediators are trying to transition their practices from traditional law practice into ADR.  In those instances the mediator may be hoping to build an impressive pro bono settlement rate to enhance his or her reputation as a private mediator for fee.  Those mediators will be unwilling to endure many doomed pro bono assignments before he or she begins to question the value in continuing to participate in the program.

   Moreover, in addition to harming the integrity of appellate mediation programs, over inclusive selection programs waste judicial resources. After all, judicial resources are wasted every time an appellate mediation fails.

   Highly selective programs, on the other hand, ensure economically efficient settlement rates.  Indeed, studies show that highly selective programs tend to have a higher overall degree of success.  For example, the Ninth Circuit utilizes a two-step, highly selective, process in determining which cases to compel to mediation.  Thus, “[b]y hand-picking the cases they handle and devote their full attention to settlement, the Ninth Circuit’s mediators have been able to accrue an impressive seventy-three percent settlement rate.”  Such a feature is ideal.  Not only does it increase the chance of settlement, it saves the court the expense of conducting impossible mediations.  However, because of the numerous structural and procedural differences in each appellate court, the appropriate level of selectiveness will vary.  Obviously the ideal level will yield a settlement rate that equals the benefits derived from the salvaging of judicial resources.            

IV.    CONCLUSION

   Although this paper only skimmed the surface of the different features present in appellate mediation programs, it has nevertheless highlighted one single and important point.  State and federal appellate courts should tailor their programs in such a way that maximizes settlement and saves judicial resources.  Indeed, not only does this approach improve the quality of the appeal for participating parties, but it frees up judges to focus on the more difficult and pressing cases.  After all, a limited amount of appellate judges are faced with an ever increasing workload.  Thus, appellate courts should work to tweak their appellate mediation programs to maximize their economical utility and public satisfaction.  



[1] Mori Irvine, Better Late Than Never: Settlement at the Federal Court of Appeals, 1 J. App. Prac. & Process 341, 341 (1999).
[1]  Shawn P. Davisson, Privatization and Self-Determination in the Circuits: Utilizing the Private Sector Within the Evolving Framework of Federal Appellate Mediation, 21 Ohio St. J. on Disp. Resol. 953, 962-63 (2006). The unique features include “a narrowing of the issues, standards of review resulting from the decision below, and evolving party goals.”  Id.
[1] See Edward C. Dawson & Christian J. Ward, Appellate Mediation in Texas and Beyond, The Advocate, Fall 2007, at 24-25.  See also Irving R. Kaufman, Must Every Appeal Run the Gamut?—The Civil Appeals Management Plan, 95 Yale. L. J. 755, 761 (1986) (hereinafter “Kaufman, Run the Gamut”); Ignazio J. Ruvolo, Appellate Mediation—“Settling” the Last Frontier of ADR, 42 San Diego L. Rev. 177, 201-14 (2005). 
[1] Thomas F. Ball, III, Settling Cases on Appeal: An Option to Consider, 11 W. Va. Law. 14, 14-15 (1997).  Ball states that these incentive include: (1) “[p]rofessional assessment of the probabilities on appeal”; (2) “[p]rotecting a favorable lower court opinion”; (3) “[a]lternative legal avenues available”; (4) “[w]illingness to join in a motion to vacate the lower court opinion”; (5) “[i]t will cost less money to settle now rather than later”; (6) “[a]bility to structure payments”; (7) “[o]ngoing litigation disrupts business”; (8) “[a]ppellate litigation takes time”; (9) “‘I’ve had my day in court’ and it’s time to let go”; (10) “[o]ne-on-one contact between parties, [and] attorneys”; (11) “[t]ax benefits”; (12) “[i]mmediate need”; (13) “[e]quity”; and (14) “[p]eace of mind.”  Id.   
[1] See infra notes 33-34 and accompanying text.
[1] See infra notes 9-32 and accompanying text.
[1] See infra notes 33-65 and accompanying text.
[1] See Sandra Schultz Newman & Scott E. Friedman, Appellate Mediation in Pennsylvania: Looking Back at the History and Forward to the Future, 5 J. App. Prac. & Process 409, 409-10 (2003).  See also Davisson, supra note 2, at 958.
[1] Irving R. Kaufman, New Remedies for the Next Century of Judicial Reform: Time as the Greatest Innovator, 57 Fordham L. Rev. 253, 261 (1988) (hereinafter “Kaufman, New Remedies”); Kaufman, Run the Gamut, supra note 3, at 756.
[1] Fed. R. App. P. 33 provides:
The court may direct the attorneys, and in appropriate cases the parties, to participate in one or more conferences to address any matter that may aid in the disposition of the proceedings, including the simplification of the issues and the possibility of settlement.  A conference may be conducted in person or by telephone and be presided over by a judge or other person designated by the court for that purpose.  Before a settlement conference, attorneys must consult with their clients and obtain as much authority as feasible to settle the case.  As a result of a conference, the court may enter an order controlling the course of the proceedings or implementing any settlement agreement.   
[1] Kaufman, New Remedies, supra note 9, at 261-62 (1988); Kaufman, Run the Gamut, supra note 3, at 756.
[1] Kaufman, Run the Gamut, supra note 3, at 759.  Originally, it was believed that a certain type of appeal was more conducive to settlement than others.  Id.  These categories involved cases appealing a monetary award rather than injunctive relief—e.g. “personal injuries, property damage, employment or other contract disputes.”  Irving R. Kaufman, The Pre-Argument Conference: An Appellate Procedural Reform, 74 Colum. L. Rev. 1094, 1099 (1974).     
[1] Kaufman, Run the Gamut, supra note 3, at 759. 
[1] Id.
[1] Dawson & Ward, supra note 3, at 20.
[1] Id.
[1] Kaufman, Run the Gamut, supra note 3, at 759 (1986) (citing Second Circuit Research Advisory Committee, Evaluation of the Civil Appeals Management Plan 5 (1981)). 
[1] A. Partridge & A. Lind, A Reevaluation of the Civil Appeals Management Plan 51-52(1983).
[1] See Robert J. Niemic, Mediation & Conference Programs in the Federal Court of Appeals: A Sourcebook for Judges and Lawyers 3 (1997).
[1] See Niemic, supra note 19, at 2-3.  
[1] See generally id.
[1] See Newman & Friedman, supra note 8, at 410-19.  See also Dawson & Ward, supra note 3, at 20.
[1] See Newman & Friedman, supra note 8, at 419.  The programs differed in that, rather than employing Staff Attorneys like the Second Circuit, California employed retired judges to serve as the neutral.  Id.
[1] See id.
[1] Id.  “According to Yeend, the program lost its champion, Judge George Para, who retired in 1984.  For the next decade, the court continued to use appellate mediation to a lesser degree, but its fall from favor was complete by 1994, when the court abandoned the program … .”  Id. at 419 n.46 (2003) (quoting Nancy Neal Yeend, State Appellate ADR: National Survey and Use Analysis with Implementation Guidelines, at app. D-5C (John Paul Jones Group 2002).   
[1] Newman & Friedman, supra note 8, at 419. 
[1] See Nora Lockwood Tooher, Appellate Mediation Catches on in Federal, State Courts, St. Louis Daily Record & St. Louis Countian, Aug. 3, 2006. 
Since it began in 1989, the program for Ohio’s 10th District Court of Appeals in Columbus has mediated over 4,000 cases with a 55.6-percent settlement rate.  Alabama, which began a statewide program in 2004, has a 54-percent success rate in its intermediate appellate courts and a 48-percent settlement rate in its Supreme Court. 
Dawson & Ward, supra note 3, at 21.  
[1] The program was founded in 1976.  Newman & Friedman, supra note 8, at 419-20. 
[1] Id.
[1] Tooher, supra note 27.
[1] See Yeend, supra note 25 , at 2-3 n.37 (John Paul Jones Group 2002) (listing 31 states as of 2002); Alabama Appellate Mediation Program Background, http://judicial.alabama.gov/mediation/mediation.cfm  (noting Alabama’s program beginning in 2004); 2003 Press Release, http://www.lasc.org/press_room/press_releases/2003/2003-10.asp (noting Louisiana’s program beginning in 2003). 
[1] Nicole L. Waters & Michael Sweikar, Efficient and Successful ADR in Appellate Courts: What Matters Most?, 62 Disp. Resol. J. 42, 44 (2007). 
[1] See Kaufman, Run the Gamut, supra note 3, at 762.
[1] Ruvolo, supra note 3, at 220. 
[1] See Davisson, supra note 2, at 967.
[1] IdSee also Niemic, supra note 19, at 6.
[1] Davisson, supra note 2, at 967.
[1] See, e.g. Exec. Order No. 12988, 61 Fed. Reg. 4729 (1996) (establishing guidelines for federal agencies to “make reasonable attempts to resolve [disputes] expeditiously and properly before trial,” and stating that ADR is “appropriate” if it will “materially contribute to the prompt, fair and effective resolution of the claims”).   
[1] Supra note 10.
[1] Joseph A. Torregrossa, Appellate Mediation in the Third Circuit—Program Operations: Nuts, Bolts and Practice Tips, 47 Vill. L. Rev. 1059, 1080 (2002).
[1] Id.
[1]  Id. at 1081. 
[1] See Davisson, supra note 2, at 967
Mediation in criminal cases was once considered anathema.  However, during the 1980s, programs were started that allowed certain defendants to mediate with certain victims of crimes.  These programs have proven effective in restoring the victim’s piece [sic] of mind an in imbuing on the offender a sense of responsibility for his actions.
Richard Birke & Louise Ellen Teitz, U.S. Mediation in 2001: The Path that Brought America to Uniform Laws and Mediation in Cyberspace, 50 Am. J. Comp. L. 181, 189 (2002).     
[1]  See Niemic, supra note 19, at 6.
[1] Robert B. Moberly & Laura E. Levine, The New Arkansas Appellate-Mediation Program, 61 Ark. L. Rev. 429, 444 (2008) (“The Arkansas program is entirely voluntary, which may lessen the program’s potential.”). 
[1] Ruvolo, supra note 3, at 185 (“[T]he First District’s experience from its own voluntary settlement conference program indicated that very few litigants volunteered to participate in ADR at the appellate level.”).
[1] Id. at. 214.
[1] Irvine, supra note 1, at 341-42.
[1] Nicole & Sweikar, supra note 32, at 52.
[1] Moberly & Levine, supra note 45, at 444 (2008) (quoting Ruvolo, supra note 3, at 214-15).
[1] See Niemic, supra note 19, at 9 (explaining that all but one of the circuit courts have adopted mandatory appellate mediation programs).
[1] Id.
[1] Supra Part II.
[1] Moberly & Levine, supra note 45, at 447.
[1] Davisson, supra note 2, at 968.
[1] Niemic, supra note 19, at 6. 
[1] Id.
[1] Id.
[1] See Ruvolo, supra note 3, at 217. 
[1] See id
[1] Id
[1] Nicole & Sweikar, supra note 32, at 44.
[1] See Newman & Friedman, supra note 8, at 416.  
[1]  S. Gale Dick, The Surprising Success of Appellate Mediation, 13 Alternative to High Cost Litig. 41, 49 (1995) (emphasis added). 

ADR Times is a community exploring mediation, conflict resolution, diplomacy and peace - a library of news, insights and resources. We welcome contributions and collaborations from other like-minded and proactive dispute resolution practitioners and scholars.