Appellate mediation: how, where and why?

“Appellate Mediation: What Makes It Different and Why Does It Work?” was the topic of discussion during an Annual Meeting program.

Senior Judge Dorothy Nelson, U.S. Court of Appeals, 9th Circuit, Pasadena, Calif., outlined the program by posing several questions that a panel of experts would address. What is appellate mediation, and what are the benefits? How is appellate mediation different from pre-trial mediation? What kinds of cases lend themselves to appellate mediation?

In addition to Judge Nelson, the panel included Claudia Bernard, chief circuit mediator for the Ninth Circuit Court of Appeals; Pamela Dunn, with Dunn Koes LLP, Pasadena, Calif.; Jon Eisenberg, a civil appellate practitioner with Eisenberg & Hancock LLP; Ignazio Ruvolo, presiding justice of the California First District Court of Appeals, Division Four; and John A. Toker, San Francisco lawyer, mediator and arbitrator.

Toker explained that, as a young lawyer, he was told that appellate mediation was an oxymoron, but he believes that statement is no longer true. Bernard weighed in, saying that courts want appellate mediation for a simple reason: it works. And, Judge Nelson reiterated its benefits by saying that it brings quick resolution to cases.

Bernard brought somewhat of a human element to the discussion of arbitration, saying that – like other mediation – the mediator provides an opportunity for the individuals involved to tell someone what they really need, want and what their interests are. Often people just want their story to be heard.

Eisenberg addressed the definition of appellate mediation: in an appellate situation, the judge has already spoken; lawyers may have come to hate each other; and appeals can take a long time, can generate unwanted publicity and can exhaust all parties.

There's a presumption of correctness in appellate cases, continued Eisenberg, and there are limits on issues that can be raised.

A lively discussion ensued about the advantages and disadvantages of mandatory versus voluntary mediation, and panelists weighed in with their own experience about a hybrid of the two. The program also provided a forum for the panelists to discuss the rate of success of appellate mediation, and also the degree of willingness of both local and federal government to participate.

The ABA Section of Dispute Resolution sponsored the program.

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