by Diane G. DeWolf
So the trial is over and you are either kicking up your heels or left holding your hat. If you are the one holding your hat, now is the time to start thinking about an appeal. Ask yourself, what is the standard of review on appeal? Does a legitimate basis for an appeal exist? Did sufficient legal errors occur that could get the case overturned on appeal? Can you even afford to appeal? Can you afford not to?
If you are the one kicking up your heels, it also is time to start thinking about the appeal, and similar questions apply: Did legitimate legal errors at trial affect the verdict? Were any errors harmless? Can you afford to litigate if the other side appeals? Do you want to? Can you wait to reap the rewards of your favorable judgment until after an appeal has been litigated?
The answers to these questions will determine not only whether the parties should pursue an appeal but also whether they should attempt an appellate mediation. Why would one engage in appellate mediation when they have already won their case? Why would one engage in appellate mediation when they are certain the appellate court will vindicate them on appeal?
It depends. While appellate mediation is not for every case or for everybody, it can often be a very effective tool to end the litigation. Let’s face it. Appeals are expensive. If you are the appellee, perhaps relinquishing a bit of that substantial judgment would be worth saving the costs and time associated with the appeal and averting the risk of reversal. If you are the appellant, perhaps paying something less than the final judgment amount would be more favorable than having a second hat handed to you on appeal, which, in turn, you would have to fill with even more money for additional costs, fees, and interest.
That said, completing a successful appellate mediation is not easy. Once one party has tasted victory, the mediation dynamics change. Thus, both parties must be aware of their strong and weak points and be willing to compromise in order for an appellate mediation to succeed. The goal of this article is to offer a brief overview of appellate mediation procedures in Florida state and federal appellate courts, and also some practical advice to help make the most of the process.
Fifth District and 11th Circuit Mediation Procedures
Appellate mediation in Florida state courts is governed by Fla. R. App. P. 9.700. The rules state that any Florida appellate court, including circuit courts sitting in an appellate capacity, “upon its own motion or upon motion of a party may refer a case to mediation at any time.”1 Of the Florida state appellate courts, however, only the Fifth District Court of Appeal maintains an organized mediation program requiring parties to participate in mediation with any frequency. Mediations are conducted by private parties at a place of their choosing. According to the Fifth District’s website, more than 30 percent of cases sent to mediation in the Fifth District are resolved.2
In the U.S. Court of Appeals for the 11th Circuit, mediation is described as a “fundamental component” of appellate litigation.3 The program is currently managed through the Kinnard Mediation Center (KMC) under Fed. R. App. P. 33 and 11th Circuit Rule 33-1.4 KMC mediators are full-time employees of the 11th Circuit, and they conduct the mediation at no charge to the parties.5 Eleventh Circuit mediations are conducted at KMC offices in either Atlanta or Miami or by telephone.6 However, the parties may instead agree to hire a private mediator at their own expense. The 11th Circuit boasts that “hundreds of appeals are resolved through the mediation program” every year.7
• The Selection Process — As noted, of the five district courts of appeal, only the Fifth District has a formal mediation program. In Florida’s other appellate courts, mediation is governed by Fla. R. App. P. 9.700-9.740. The primary difference between the appellate rules and the Fifth District’s process is in how cases end up in mediation. While courts other than the Fifth District may order the parties to mediation,8 that is not by any means a regular occurrence. It is generally up to the parties to initiate a mediation.
When appellants file a notice of appeal in the Fifth District, if the case meets the threshold requirements for mediation — that is, the case is a final civil or family appeal, and the parties are represented by counsel — both parties will receive a mediation questionnaire.9 The questionnaire must be completed within 10 days of the court’s acknowledging the notice of appeal, and it must be served on opposing counsel. This form asks for the name of the lead counsel for each party, the nature of the case, the issues on appeal (which are not binding), the standard of review applicable to each issue,10 and whether the case has ever been mediated.11
Both parties must also complete a confidential mediation statement, which is not served on opposing counsel but filed only with the court.12 In this form, the parties indicate whether they believe mediation is appropriate or inappropriate and briefly explain why.13 The statement and questionnaire are then reviewed by one of three sitting judges (Judges Palmer, Kerry, or Evander at the time this article was drafted) to determine whether the case should be sent to mediation.14
If a case is eligible for mediation in the 11th Circuit, participation is mandatory.15 Generally, all civil appeals are eligible for mediation except for cases in which a party is proceeding pro se, cases in which a party is incarcerated, habeas corpus proceedings, and immigration appeals.16 However, if the parties agree that mediation would not be productive, they may contact the mediator and request that the mediation be changed to an assessment conference.17
• The Importance of Timing — In the Fifth District, if the parties are ordered to mediation, the briefing schedule is immediately tolled.18 Because the Fifth District makes a determination on mediation very shortly after the notice of appeal is filed, neither party will have filed a brief by that time. Note that, although the briefing schedule is tolled, the appellant is not prohibited from filing an initial brief. The Fifth District requires that mediation be completed within 45 days, however.19 So barring any agreed and approved extension of time, in most cases, the initial brief would have to be filed before the record on appeal, or even the record index, has been created.
In the remaining state appellate courts, if a motion for mediation is filed within 30 days of the notice of appeal, all deadlines are tolled until the court rules on the motion.20
In the 11th Circuit, briefing is not automatically tolled, so the parties have a choice as to whether to proceed with briefing.21 The KMC schedules most mediations before briefing.22 The mediator is authorized to adjust the briefing schedule if doing so would facilitate a more successful mediation.23
Several factors are worth considering. If a party’s primary concern is saving costs by avoiding the appellate process all together, then that party should usually attempt to mediate before any briefs are filed. But that is not always the best approach. For example, if the appellant has strong legal arguments on appeal, it may be strategic to file the initial brief before mediation. Remember, in appellate mediation, one side has already won. The appellee is generally “filled with glee” at that point and, if not actually heel-kicking, is at least maintaining a fairly confident position on appeal. A strong initial brief filed before mediation could make the appellee seriously consider the possibility that the opinion could get reversed, and more willing to compromise during settlement negotiations.
• Selecting a Mediator — In the Fifth District, once the court has ordered the case to mediation, the appellant has 10 days to complete a response to the order of referral to mediation, which should, in a perfect world, include the name of the mediator the parties have agreed upon. If the parties cannot agree upon a mediator, or if they do not select one within the 10 allotted days, the court will appoint one from its approved list.24
The Fifth District’s website offers a link to an approved list of mediators.25 That link allows users to search for mediators by name, location, or various other demographic options.26 Be aware, however, that the Fifth District requires parties to use certified appellate mediators. While the list is titled, “approved mediators,” that classification is misleading because not all of the mediators on the list are “certified” and, thus, are not actually “approved” for purposes of appellate mediation ordered by the Fifth District.
In all cases, the Fifth District depends on private mediators whose hourly fee will normally be split by the parties. “In the event the mediation fees would cause undue financial hardship for a party, a statement to that effect signed by [the] party and by counsel shall be filed with the mediation coordinator of the court, in which event, a mediator randomly selected from the panel will conduct the mediation without payment by that party.”27
In the 11th Circuit, the KMC will select the mediator from its staff by rotation, unless the parties have agreed to hire a private mediator at their expense.
• Drafting the Confidential Mediation Statement — Most appellate mediators ask the parties to submit a confidential mediation statement at least a week before mediation, which the 11th Circuit requires as a matter of course.28 As the term “confidential” suggests, unlike many mediation statements filed at the trial-court level, appellate statements are not shared among the parties, but only with the mediator.
The 11th Circuit provides a specific list of items that must be included in the statement when mediating at the KMC.29 That list provides a good guideline for drafting a statement for any mediation. In private mediations, the parties have more flexibility. In all cases, the statement should relate the pertinent facts of the case, the issues on appeal, and the party’s position and arguments on those issues.
A good statement should start with a brief introduction telling the mediator what the case is all about and what happened. It should convey a lot of information in a few words, introduce the theme, set the tone for the rest of the statement, and entice the mediator to read on and learn more about the case. Providing this introductory overview before delving into the facts means the mediator will not have to guess which facts are important to the outcome of the case.
Following the introduction, the statement should provide the pertinent facts of the case and procedural history followed by the issues on appeal with appropriate argument. It is also helpful to include a statement regarding whether the case is likely to settle at mediation and why. For example, “while we are willing to negotiate in good faith and would like to settle this case before the appeal, we feel strongly that reforming the contract’s terms may prove impossible for the following reasons…” or “while an agreement on past monetary damages may be achievable, an agreement to redraw the boundary lines seems unlikely due to future devaluation concerns.”
As with all appellate writing, the statement should tell an interesting story, and it should be as brief as possible while still including the relevant facts and argument. A statement filled with irrelevant dates and immaterial or over-detailed facts is difficult to read and may quickly cause the mediator to lose interest.
The statement should also contain an honest assessment of the case, both its strengths and weaknesses, so the mediator can easily understand at what points a potential for compromise exists and where it is unlikely. This is not to say a party should fall on the sword and admit the chances of success on appeal are unlikely. Instead, the statement should acknowledge any potential problems and, at the same time, state how the law and facts of your case will likely surmount that problem. For example, if a particular case weighs against you, acknowledge it up front, but also explain why it is distinguishable or does not apply to the facts of your case.
The process of writing a comprehensive statement is a good exercise for the client who won at trial. By pointing out any potential weaknesses moving forward on appeal, the statement may help the client understand that success is not guaranteed, removing any unrealistic expectations, while improving the chances for a successful appellate mediation.
Too often, parties give little or no thought to the statement. In some cases, at least in state court appeals, a party will not file a statement at all. That is generally a mistake because it signals to the mediator either 1) the party’s case on appeal is weak, or 2) the party has no interest in settlement. While that may not be true in every case, it is fair to say that failing to submit a statement will not help to facilitate a successful or expeditious appellate mediation.
• Who Must Participate — The 11th Circuit rules require that “[c]ounsel, client, and a representative of any person or entity directly affected financially by the outcome” must participate in the entire mediation.30 In addition, “[a] representative of any insurance company, either as a party or nonparty, that has not offered policy limits must personally participate with authority and discretion to settle up to policy limits or the amount of the claimant’s last settlement demand, whichever is less. If an insured party has any exposure outside of policy limits or has control or influence on the amount paid within policy limits, then both the insured party and the representative must personally participate.”31
If a party fails to comply with the court’s mediation requirements, 11th Circuit Rule 33-1(f) authorizes the court to 1) assess reasonable expenses caused by the failure, including attorneys’ fees and all or a portion of the appellate costs; 2) dismiss the appeal; or 3) take such other action it believes is warranted.
Fla. R. App. P. 9.720(a) requires that the following persons must appear in person or electronically for the entire mediation:
“(1) The party or its representative having full authority to settle without further consultation.
“(2) The party’s trial or appellate counsel of record, if any.…
“(3) A representative of the insurance carrier for any insured party who is not such carrier’s outside counsel and who has full authority to settle without further consideration.”32
It is imperative that the party, the person with settlement authority, and counsel all participate fully in the appellate mediation process. Failure to do so may result in sanctions including: “(1) An award of mediator and attorney fees and other costs or monetary sanctions. (2) The striking of briefs. (3) Elimination of oral argument. (4) Dismissal or summary affirmance.”33
• Preparing Opening Remarks — On the day of mediation, after the mediator has made opening remarks, each party will then have the opportunity to present opening statements with all parties present. Ordinarily, the appellant gives the first opening statement, as it is the appellant who would file the first brief and also take the first turn at oral argument.
The opening statement is not a back and forth conversation, and the mediator does not usually interrupt the party speaking. Instead, the opening statement is the one opportunity counsel has to directly address the opposing party without interruption from opposing counsel. Remember, one client has already won at trial. So they are likely feeling pretty confident going forward on appeal, and probably wondering why one would want to settle the case at all, especially after receiving a substantial monetary judgment. Thus, it is important for that client to know that the award could be lost on appeal. Pointing out the strengths of the appeal and the weaknesses on the other side should help to soften any self-assuredness the client may have at this point. Opposing counsel will, of course, make an opening statement disputing or discounting your arguments. But that is not until after you have finished speaking, and you have already stated your strong arguments on appeal.
It is important at all times to maintain a civil demeanor when addressing the opposing party. The opposing party must believe that you are sincere yet confident. You must also convey that you are here in good faith to settle the matter, if possible, and within reason.
• Negotiating the Settlement — Following opening statements, the mediator will typically separate the parties into individual rooms. In the 11th Circuit, if the mediation is conducted by telephone (which is usually the case unless the parties are located near the KMC in either Atlanta or Miami), the mediator will place the parties into “virtual rooms” so they can speak privately with the mediator.
The mediator will then attempt to solicit offers and counteroffers from both parties with the ultimate goal of meeting somewhere in the middle. The mediator will generally do this by pointing out the weaknesses in your case. The mediator will also discuss, among other things, the legal issues and the appellate decision-making process regarding those issues, any previous efforts to settle, the parties’ interests, cost and time considerations, any changes that have occurred since the case was decided or since any previous attempts to settle, and any other procedural alternatives.34 The mediator may also schedule one or more subsequent mediation sessions before finally concluding that settlement is not achievable and declaring an impasse.35
• Other Considerations — Of significant importance when deciding whether to try to settle your appeal is the standard of review. For example, if you are the appellant, and your sole argument is that no competent substantial evidence (CSE) exists to support the verdict, you should seriously consider appellate mediation in lieu of pursuing the appeal — the appellate court will not reweigh the evidence. If you are the appellee, mediation would be less appealing because findings based on CSE are usually affirmed on appeal.36
However, mediation may still be an appealing option to the appellee in CSE cases because, first, it saves the time associated with pursuing appeal,37 meaning the appellee would not have to wait until after the appeal to collect any monetary award or enjoy other relief ordered by the trial court. Second, it saves the costs of litigating the appeal, which, even in uncomplicated cases, can be significant.38 Third, appellate courts are not always predictable; the risk of reversal is real.
Another factor to consider is statistics. A study published in 2007 by the Court Statistics Project confirmed what most seasoned appellate lawyers instinctively know — because intermediate appellate courts defer to trial courts on most issues — reversal rates are low.39 Nevertheless, reversal rates vary depending on whether the appeal is from a bench trial or a jury verdict, which party — the plaintiff or the defendant — is the appellant,40 and even by which judge presided over the trial. Reversal rates are statistically highest when the defendant is the appellant appealing a jury verdict (31 percent) and lowest when the plaintiff is appealing a decision made by a judge following a bench trial (5 percent).41 Overall, defendant/appellants are twice as successful as plaintiff/appellants on appeal.42
Appellate mediation provides an effective means to resolve a case even after a party has already won at trial. As the 11th Circuit and the Fifth District have proven, good reasons exist to require mediation in certain types of cases. For an appellate mediation to succeed, however, both parties must be willing to compromise. The appellee must realize that victory can sometimes be fleeting and should not expect to leave an appellate mediation with the entire amount awarded at trial. The appellant, on the other hand, must be aware of the appellate court’s standard of review and know that getting a case reversed is an uphill battle. For those reasons, the appellant must be willing to bring an appealing offer to the table.
1 Fla. R. App. P. 9.700(a)-(b).
2 See Fla. Fifth Dist. Ct. Appeal, Mediation, http://www.5dca.org/Mediation/mediation.shtml.
3 See U.S. Court of Appeals for the 11th Circuit, Mediation in the 11th Circuit Court of Appeals 1, available at http://www.ca11.uscourts.gov/mediation-forms.
8 See Fla. R. App. P. 9.700(b).
9 See Fla. Fifth Dist. Ct. Appeal, Mediation Questions and Answers, http://www.5dca.org/Mediation/Questions_Answers.shtml.
10 Only the appellant and cross-appellant may complete the “issues on appeal” section.
11 Fla. Fifth Dist. Ct. Appeal, Mediation Forms, http://www.5dca.org/Mediation /mediation_forms.shtml.
14 See note 9.
15 See U.S. Court of Appeals for the 11th Circuit, Mediation in the 11th Circuit Court of Appeals at 1.
17 Id. at 2.
18 See note 9. Note that in Florida’s other appellate courts, briefing is also tolled if the parties attempt mediation “[u]nless otherwise ordered, or upon agreement of the parties to postpone mediation until after the expiration of time for filing the appellate briefs.” Fla. R. App. P. 9.700(d).
20 Fla. R. App. P. 9.700(d). If the motion is not filed within 30 days after the notice of appeal is filed, the moving party would also have to file a motion to toll time or stay the proceedings pending the appellate court’s ruling.
21 See U.S. Court of Appeals for the 11th Circuit, Mediation in the 11th Circuit Court of Appeals at 5.
22 Id. at 2.
23 Id. at 5 (“The KMC may grant extensions of time to file an appellant’s or appellee’s brief for not more than 30 days from the date of a scheduled initial mediation, and for additional periods of not more than 30 days, to facilitate the prospects of settlement. Also, if warranted, the KMC may grant extensions of time to file a reply brief for up to seven days.”).
24 See note 9.
25 See Florida Fifth District Court of Appeal, Mediation, Approved List of Mediators, http://www.5dca.org/Mediation/mediation.shtml.
26 See Florida State Courts, Dispute Resolution Center Mediator Reporting System, http://drc.flcourts.org/pls/drc/drc_main_screen.
27 See note 9.
28 See 11th Cir. R. 33-1(d).
29 See U.S. Court of Appeals for the 11th Circuit, Mediation in the 11th Circuit Court of Appeals at 4.
30 Id. at 3-4.
32 Fla. R. App. P. 9.720(a).
33 Fla. R. App. P. 9.720(b).
34 See U.S. Court of Appeals for the 11th Circuit, Mediation in the 11th Circuit Court of Appeals at 3.
36 At least one former First District Court of Appeal judge often remarks that CSE = PCA.
37 Most appeals will take at least one year beginning with the notice of appeal and ending with an opinion affirming or reversing your case. In state court, the briefing process alone is 120 days, or four months, provided neither party files any extensions of time. Of course, the district courts now all allow agreed extensions up to 90 or even 120 days for each party, meaning the briefing process is frequently much longer. Many cases also have oral argument. That, of course, is followed by waiting for the opinion and mandate to issue. That can be just days if the court per curiam affirms, or it could be months and even years for a written opinion in complicated civil matters.
38 Many factors influence the costs and fees on appeal including the number of issues raised, the size of the record on appeal, whether you are in state or federal court, and whether oral argument is held. But a civil appeal in Florida state courts will rarely cost less than $30,000 and can easily exceed $100,000 as the matters become more complicated and oral argument is included. Thus, it is important to consider how much you could actually save your client by settling the case and how much more valuable any damage award would be sooner rather than later.
39 See Court Statistics Project, 14 Civil Trials on Appeal – Part 1 at 3 (Mar. 2007).
41 Id. at 4
42 Id. (noting defendant/appellants have an overall 40 percent reversal rate from both jury and bench trials compared with an overall 20 percent reversal rate for plaintiff/appellants).
Diane G. DeWolf is board certified by The Florida Bar in appellate law. She is an attorney in the litigation practice group and appellate team with Akerman LLP in Tallahassee. DeWolf specially thanks Kathi Giddings for her mentorship and helpful insight in preparing this article.
This column is submitted on behalf of the Appellate Practice Section, Kristin A. Norse, chair, and Brandon Christian and Thomas Seider, editors.