By Leslie M.G. Hayes and Bryan A. Nickels

“I Never Been Defeated and I Won’t Stop Now (Woo)”[i] – Why Would I Mediate on Appeal?

There is always risk in litigation.  However, mediation is a tool to help your client reduce some of that risk.  This principle remains the same when your client’s case is on appeal.  While there might be additional considerations and a different risk/reward analysis, the opportunity for the parties to resolve their dispute at the appellate level should be seriously considered, as even a successful trial court result does not guarantee success at the appellate level.[ii]

Two types of cases where appellate mediation might offer the best benefit are procedurally complex cases[iii] or interlocutory appeals of one issue (or one party, in multi-party litigation).  But even smaller cases – especially those facing several months of appellate procedure and a potential remand – may significantly benefit from a resolution at the appellate stage.

“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.”[iv]  Therefore, evaluating the potential for appellate mediation could benefit most cases.

“So I’ll Go If You Want Me To”[v] – Discussing Mediation on Appeal with Your Client

Of course, the core impediment to mediation at the appellate level is that, by the time a case has made its way to an appellate court, somebody has already won something.  Even if on an interlocutory appeal regarding, for example, a discovery issue, some party has already prevailed on an issue significant enough to be addressed by an appellate court.

On the flip side, from the unsuccessful litigant’s perspective, the decision to undertake appellate mediation is often an easy decision; however, if your client is already the prevailing party, it may be more difficult to convince your client to mediate on appeal.

In convincing clients to undertake appellate mediation, some initial hurdles that will need to be explored or addressed are: (1) whether mediation was already unsuccessful at the trial court level (that is, what has changed to think that the same result will not occur?), (2) the “sunk cost fallacy” (that is, a client resistant to expending more on mediation costs while on appeal, or otherwise chasing the already-spent dollar), and (3) the “non-automatic” nature of mediation on appeal (as opposed to the trial court level where mediation is frequently ordered as a matter of course).

The first issue a client might raise – prior (unsuccessful) attempts at mediation – can be addressed by emphasizing that even unsuccessful mediations bear fruit.  While most mediations are hopefully successful on the first sit-down, other mediations are unsuccessful on the first try and instead require multiple sessions and several days (or weeks) of in-conference or even informal communications.[vi]

With that, the unsuccessful prior mediation can be appropriately framed as just the first session, and, in fact, whether favorable or otherwise, the result giving rise to the appeal may have resolved a sticking point in the initial mediation.  Ultimately, however, because mediation is free in the Ninth Circuit – and there are free avenues that can be explored at the state court level – there is really no harm in giving mediation a second try, should the opportunity present itself.[vii]

To the second issue – the “sunk cost fallacy” – it should be emphasized that considerations in mediation cannot be wholly backwards looking but must consider the present scenario and future costs/risks (including, as always, the intangible benefits, such as not spending your free time with your lawyer[viii]).  As explained by mediator Chuck Lempesis: “[p]ointing out the fact that they are now destined to spend even more provides a needed reality check that leads us back to the original resolution.”[ix]

On the final issue, a prevailing client – not bound to mandatory mediation – may not appreciate the inherent risks of appeal.  Such risks might include: (1) a trial court summary judgment decision that might fall apart in the face of existing (or even new!) caselaw; (2) trial court errors in the admission or exclusion of evidence or witnesses; and (3) defects in jury instructions and/or verdict.  Any of these risks pose a new potential risk of an appellate court ordering a “do-over,” resulting in the case being remanded, further resulting in several more months if not years of ongoing litigation.[x]

Thus, any client discussion regarding the potential for appellate mediation should address these concerns.

“Far From Home, Stay Patient”[xi] – General Mediation Principles and How Do they Apply on Appeal?

In general, the timing of mediation on appeal can vary as much as it does in litigation.  However, getting into mediation prior to briefing can provide additional benefits to your client.  In the Ninth Circuit, the mediators can help set a briefing schedule that permits the parties to explore resolution, but without losing their place “in line.”

That is, mediators can allow parties to push out briefing to allow time for mediation, while still keeping the assigned panel and hearing date (even when you are unaware of those details), so that the timing of your appeal and decision will be the same with or without participation in the mediation program.  This means that your client loses almost nothing (other than the investment of time in the mediation itself) by participating in mediation.

However, there may be other times when the timing dictates mediation will be most successful after briefing is complete or sometimes even after oral argument is complete.[xii]  For example, cases that present questions of first impression or complex matters of fact and law might be well-served by completing the briefing process prior to exploring mediation.

Likewise, it may be that the parties might find the best result by going through the argument process to best understand what forest the judges are seeing through the lawyers’ trees.  In those circumstances, initiating an appellate mediation at a later juncture might provide the parties with desperately needed information and impressions regarding the appeal, so that the full picture of the potential outcome[xiii] of the appeal can be considered in negotiations.

“We Found A Permanent Fix for a Lost Cause”[xiv] – So How Does This Come Up?

Appellate mediation can occur one of two ways.  Of course, parties are free at any time in any litigation to sit down and engage in mediation as the litigation progresses on its natural course.  However, if the parties want a more formal process – one that, for example, critically suspends the briefing schedule or delays the issuance of a decision that might change the landscape of the case and appeal – how that process is initiated depends on the court they find themselves in.

Should the parties be before the Idaho Supreme Court, for example, a request for an appellate settlement conference is made via Idaho Appellate Rule 49.  This rule – the product of efforts beginning in the 1990s to introduce Alternative Dispute Resolution (“ADR”) to the appellate process by Justice Byron Johnson – allows the process to be initiated by written agreement and requested by the parties to the Court, which suspends the appeal process by 49 days.[xv]  The process is, by rule, an informal one – settlement statements are submitted, but destroyed after negotiations; no recording is permitted (written notes only); and, ideally, the settlement discussions are to be informally conducted “around a table.”

In contrast, the Ninth Circuit is a more formal process.  By rule, appellants must (and appellees may) submit a Mediation Questionnaire to the court and the failure to do so by an appellant might even result in the dismissal of the appeal.  After the appellants submit a Mediation Questionnaire, if appropriate,[xvi] an initial assessment conference takes place so that both the parties and the mediator can decide whether the matter is appropriate to proceed to mediation.

As the Ninth Circuit has explained, “[t]here 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.”[xvii]  Either way, the mediator can assist the parties with procedural and case management issues to encourage at least the exploration of the potential for mediation.

Even if there is no mediation triggered at the outset of the appeal, parties may even be “invited” during argument to undertake mediation by the hearing panel.  For example, one of the authors (Ms. Hayes) had mediation and settlement raised at oral argument, where the panel posed the issue to both counsel mid-argument.[xviii]

Judge A: Is there any chance of settling this case?  Does Idaho really really want to do this?

Counsel for Appellee: That’s a question . . .

Judge B: You might be asking the wrong guy.

Judge A: I’m asking if there is any sense in trying to mediate this case.
. . .
Judge C: Well, I can ask the State when she gets back up.  Because I would like to know what the State’s position is in trying to get a resolution in this matter.  And frankly, you both might be better off if you settled rather than wait for us to answer these questions.  Just a hint.
. . .
Counsel for Appellant: To answer the question about resolution . . .

[discussion of who has authority to settle, and statutory permissibility for potential avenue for resolution]

Judge B: Who needs a mediator when you’ve got Ninth Circuit Judges.

Judge A: We have wonderful mediators if you’re willing to talk to them.

Counsel for Appellant: To answer your question, yes, I will talk to [my clients] about your request for mediation.

Judge B: Thank you.  And I know we’ve put you through your paces today, and you’ve answered the question about mediation, but you are out of time, could you take a few minutes, well, not a few minutes, but could you wrap up.

So, even when the parties – and even the mediator – have determined that a case doesn’t feel right for mediation, there is some likelihood that the hearing panel will expect the parties to be able to re-address the potential for mediation.  Thus, the savvy practitioner will be ready for this line of questioning, irrespective of past determinations of the ability of a case to be mediated.

Finally, preparation for mediation at the appellate level is largely the same as mediation at the trial level – know your client’s goals, know the law and facts at issue in the case, and be practical with your approach – but at the appellate court level, the parties should also be prepared to address “new” issues in the case (for example, the parties should be prepared to address the governing standard of review and how that might impact the viability of their argument).

“Good Luck, We’re All Counting on You”[xix]

The robust and successful use of ADR should include consideration and use of appellate mediation as an additional tool in the practitioner’s toolbox.  While appellate mediation may not be suited for all cases – and, indeed, may require some additional consideration based upon the wants and needs of your client at the appellate stage of litigation – the opportunity to resolve a disputed matter provides an opportunity for both parties and the judicial system to sidestep long, costly litigation at a critical point in the parties’ dispute.  Even when a party has prevailed below, there is little harm in making one more sit-down with the opposing party and a mediator to see what options might be available, even if one party is heavily favored.

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Author’s Note: This article is adapted from a presentation entitled “Appellate Mediation,” presented on July 22, 2022 and the Idaho State Bar Annual Meeting by the authors. This presentation is available as an online, on-demand program through the Idaho State Bar’s website, and includes a short presentation and Q&A by two of the Ninth Circuit’s mediators.

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[i] DJ Khaled, All I Do is Win on Victory (eOne Music 2010).

[ii] Even the most overwhelming victory at the trial court level does not guarantee success at the appellate level, and even experienced litigators should be cautioned against overconfidence.  See, e.g., General John Sedgwick, Battle of Spotslvania Court House, “Why are you dodging like this?  They couldn’t hit an elephant at this distance.” (subsequently shot and killed).

[iii] Leslie anecdotally notes: One specific example is a case we were able to settle at the Attorney General’s Office through the Ninth Circuit mediation program.  There, we had a pro se litigant at a correctional facility who brought a failure to protect claim under the Eighth Amendment.  We filed for summary judgment on qualified immunity grounds and the district court denied our motion and we appealed.  The parties agreed to mediate.  Mediation was successful, free, and took less than half a day.  The State was able to avoid the potential for remand and a trial and the pro se litigant was able to obtain resolution of his claims and, with the mediator, he was better able to understand the risks posed by continued litigation.

[iv] https://www.ca9.uscourts.gov/mediation/the-benefits-of-mediating-on-appeal/ (last accessed Nov. 16, 2022).

[v] Charly Bliss, Under You on Young Enough (Barsuk 2019).

[vi] A renewed mediation attempt following an unsuccessful one should be enthusiastically and positively viewed as a real-world application of the Japanese proverb, “fall down seven times, stand up eight.”

[vii] In fact, at the federal court level in the Ninth Circuit, if the appellant requests mediation, counsel for the appellee is required to participate in the preliminary phone assessment conference with the mediator.  https://www.ca9.uscourts.gov/mediation/frequently-asked-questions/ (FAQ 6) (last accessed Nov. 16, 2022).

[viii] “It didn’t hit me till after/Guilt piling up to the rafters/And I drunkenly leaned on the urinal/Thinking how I’d missed too many birthdays/And a couple of funerals.”  PUP, Edmonton, on This Place Sucks A** (Little Dipper/Rise 2020), or, alternatively “You and your words, obsessed with your legacy/Your sentences border on senseless/And you are paranoid in every paragraph/How they perceive you.” Lin-ManuEl Miranda, Burn on Hamilton (Atlantic Records 2015).

[ix] Charles Lempesis, The Art of Making Peace (2013), 58.

[x] Including the potential for mediation after the reboot, but potentially from a weaker position then where you may be on appeal.

[xi] Hot Mulligan, We’re Gonna Make It To Kilby!, on You’ll Be Fine (No Sleep Records, 2020).

[xii] We caution that it is extremely difficult to stay the disposition of your appeal after oral argument and if you intend to pursue mediation at that point, you will need to file your motion to stay as soon as possible following oral argument.

[xiii] Of course, the panel you draw may also influence your decision to mediate.

[xiv] Microwave, Trash Stains on Stovall (2014).

[xv] The wording of Idaho Appellate Rule 49, however, directs the assignment and usage of a “conference judge” (contrasted, as below, with the Ninth Circuit’s use of in-house court mediators).  In its initial push, the Idaho Supreme Court appellate settlement conference efforts yielded good results–of the 438 cases that went through the process between 1990 and 2008, 59% were resolved.  Maureen Laflin, Dreamers and Visionaries: The History of ADR in Idaho, 46 Idaho L. Rev. 177, 198 (2009).  However, in preparation of this article, it was anecdotally shared by Idaho Supreme Court personnel that in the last three years, only one Rule 49 appellate settlement conference has been undertaken.  Various strategies might be employed to reinvigorate the use of Rule 49, such as having the Court proactively screen and invite as may be appropriate, provide more flexibility in staying briefing/arguments, utilizing mediators rather than a conference judge, and using remote conferencing.  Other suggestions made to the authors include allowing appellants to initiate the process via request in the notice of appeal, and allowing similar stay allowances if the parties notify the Court that private mediation is being undertaken.

[xvi] By way of example, if the mediation questionnaire simply states that there is no opportunity for resolution, there is unlikely to be an initial assessment call; however, such an approach is not within the spirit of the program.  The authors have been on that call for multiple cases and the call has value even if the case does not ultimately proceed to the mediation program.

[xvii] https://www.ca9.uscourts.gov/mediation/the-benefits-of-mediating-on-appeal/ (last accessed Nov. 16, 2022).

[xviii] For those interested, the entirety of the argument can be found here: https://www.youtube.com/watch?v=UmYeIaQlYlY (last accessed Nov. 17, 2022).  The typed version above is not intended to be a transcript of the proceedings, but to give a flavor of the argument.

[xix] Airplane! (Paramount Pictures 1980).