Is Appellate Mediation Worth It?

Appellate courts (unlike trial courts) are not known for settling cases. But to the surprise of many, appellate courts across the country have mediation programs devoted to that task. These programs provide a way for parties to settle while on appeal, and often are free.

Appellate mediation programs come in varying forms, but most are like the one used by the U.S. Court of Appeals for the Third Circuit. It employs a staff of several full-time mediators. They use case intake forms to decide which cases to mediate. Parties also can ask for mediation. If selected, the court defers appellate briefing. The parties submit short position papers and then gather for a mediation session. The process essentially mimics mediation at the trial court level.

Other courts have similar programs. The Pennsylvania Commonwealth Court’s program is like the Third Circuit’s, except that a senior judge acts as the mediator and the process does not automatically defer briefing. The District of Columbia Circuit uses accomplished and trained local lawyers as mediators and carefully selects cases for its program.

To be sure, not every appellate court has a mediation program. And even courts that do typically limit the program’s scope to civil cases with a damages dispute where all parties have counsel.

Do these appellate court mediation programs work?

Statistics are hard to come by, but these programs generally settle a relatively small fraction of mediated cases. Some of this has to do with mediator quality. Just as with trial-level mediators, appellate mediators are of varying quality. Some are skilled and work hard to achieve a settlement, while others are less effective.

It may be unfair to measure success here in statistical terms. Appellate mediators face an uphill battle. By the time a case reaches the appeals court, positions have hardened and one side has notched a trial court win. Both sides have invested in attorney’s fees; some of that money could have been used for a settlement.

These factors do not make for great settlement dynamics. They also suggest that it makes little sense to force parties into appellate mediation, as some courts do. While there is nothing wrong with a court asking about or encouraging mediation, forcing parties into it often wastes everyone’s time and money.

Despite these headwinds, appellate mediation programs can post strong results. New Jersey’s Civil Appeals Settlement Program recently reported a success rate of over 40%. Other courts’ programs settle about half of the referred cases. These figures are impressive, especially considering settlement surely was contemplated at the trial level – but did not happen. It thus seems that the modest investment needed for appellate mediation programs is worth it.

These statistics also show that parties understand the reality that litigation risk still continues on appeal. Affirmance is not guaranteed. The appellate court could vacate and remand and put the parties at square one. Appeals also are not free; there are attorney’s fees on appeal to consider. Settling replaces these risks and costs with certainty and finality.

To sum up, appellate court mediation programs should not be written off. While they are of uneven quality and can produce only modest results, these programs can and often do help parties avoid the risks and costs associated with a final decision on appeal.