The Benefits of Mediating on Appeal

Mediation at the appellate level provides just as many opportunities for resolution as mediating at the district court level. Indeed, many of the reasons to mediate at the trial court level still exist on appeal: time, expense, risk of loss, preservation of a relationship, a desire to make or avoid legal precedent, etc. An agreement crafted through mediation may prove a better remedy than what a court could fashion. The pause in the proceedings provided by the appeal can offer the parties an opportunity to reevaluate these interests.

For example, a party who has won a monetary judgment at district court might prefer to settle for a reduced amount to receive payment now and avoid risk that the judgment could be disturbed on appeal. A party who has lost at trial might be willing to settle for a sum that represents the cost of defending the appeal. Occasionally the underlying result takes everyone by surprise and each side understands the very real risk on appeal.

In other situations, settlement efforts make sense because the issue on appeal will not resolve the dispute between the parties no matter who wins. For example, the appeal may arise from an order that is, as a practical matter, a preliminary decision, such as a grant of a motion for a preliminary injunction or a dismissal based on forum non conveniens. Related litigation may be pending elsewhere, perhaps in state court or in a bankruptcy proceeding. In many cases, a successful appeal challenging the grant of a motion to dismiss or summary judgment means the appellant has won the right to return to district court for further proceedings, including possibly a second appeal.

The length of the appellate process, which sometimes can last more than two years, might affect the interests of one or more parties. Time may be an important consideration if a company is being bought or sold or if the end of the fiscal year is approaching. Frequently, an individual facing an uncertain legal process realizes that he or she has moved on from the litigation, either geographically or psychologically.

There are no hard and fast rules as to what makes a good candidate for appellate mediation. The opportunities are not always apparent at the outset and the court encourages the parties to consider mediation in most cases.