Many appellate courts have mediation programs to help settle cases. A substantial number of appeals settle in mediation. In most courts, more than 60 percent of cases selected for mediation—in some courts as high as 70 percent—do settle.
Mediation on appeal is different from a settlement conference in the trial court. For one thing, by the time the case gets to appeal, the parties know who won and who lost. The party who won the judgment below may be reluctant to settle, knowing that the odds of winning the appeal are high. Appellate mediators are specially trained to deal with this problem and many others that could get in the way of settling.
Mediation has many advantages. One is that it’s economical. Mediation usually costs just a fraction of what it would cost to pursue the appeal. Mediation is faster than appeal; from assignment to mediation to settlement can take just a few weeks, while an appeal will ordinarily take more than a year, often much more. Frequently, winning an appeal does not conclude a case; the case is returned to the trial court for further proceedings. Mediation, on the other hand, can result in a final conclusion to the litigation. An appeal may involve only one aspect of a more complicated dispute with a number of areas of disagreement, or there may be parties who are not involved in the appeal but whose interests could be affected by the outcome. Mediation can result in a single, global resolution of all matters in dispute between all interested parties.
It’s not always possible to tell in advance whether a particular case will be sent to mediation. Each court has its own process for selecting cases for mediation. In most courts, both parties must also agree to mediate. Some courts, however, have mandatory mediation programs; if the court selects a case for mediation, the parties must participate in the process. Regardless of whether the court selects a case for mediation, if the parties decide between themselves that the case should be mediated, almost all courts will accommodate them.
