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The Appeal of Appellate Mediation: Making the Case for an Attractive Dispute Resolution Tool

Appellate Practice

One may wonder how and why appellate mediation could ever serve as a practical resolution tool. Presumably, settlement negotiations were not fruitful before trial. One party has already received a favorable ruling in the case. The answer, though sometimes surprising, is fairly simple. A global case resolution through appellate mediation can save both the parties and the courts considerable time and valuable resources1 and can promptly bring to an end a dispute that could otherwise potentially drag on for years to come.2 The goals of this article are to provide a brief overview of the appellate mediation programs currently being utilized in Florida’s federal and state courts of appeal, to dissipate any negative preconceptions regarding appellate mediation, and to suggest that, in certain cases, appellate mediation can serve as a valuable tool in settling a dispute.

The Benefits of Appellate Mediation
Appellate mediation can serve various functions depending on the specific circumstances and nuances of a particular case. In many cases, appellate mediation brings the parties together in order to educate them on the appellate process in general and to inform them of how appellate courts are likely to address the issues on appeal. An appellate mediator is likely to bring to the parties’ attention the fact that an appellate court will not re-try the case or take additional evidence, and will often point out to the parties that the appellate court’s jurisdiction is limited in scope to those narrow issues brought before it under a specific legal standard of review.3 This opportunity to discuss the ramifications of the applicable standard of review, the merits of the case from an appellate point of view, and the inherent risks of proceeding on appeal can be invaluable in helping to remove a client’s unrealistic expectations.4 In this way, it is similar to mediation at the trial level.

In addition, appellate mediation provides a forum to educate each party of the fact that the appellate court is likely to place a strong presumption of correctness on a trial court’s order or judgment entered after a jury’s verdict and to make clear that whenever a party pursues a case on appeal, he or she is facing an uphill battle.5 Just like juries and trial courts, appellate courts can be unpredictable. Even in cases that may appear to be open-and-shut, the inherent risk in an appellate proceeding cannot be disregarded and should not be ignored.

Another benefit of appellate mediation is that even though the issues on appeal may be quite limited, there is nonetheless the potential for exploring a global resolution of an entire dispute.6 Often, the most effective appellate mediations focus on resolution of a whole case and include any collateral issues or anticipated future litigation between the parties, rather than strictly focusing on the narrow issues presented in the appellate proceeding.7 In this way, an appellate mediation offers a remedy that cannot be crafted by the appellate courts, which are constrained to decide only those limited issues before it. A global resolution not only saves the cost of the appeal, but also saves the additional expenses associated with supplemental litigation.8 Appellate mediation also often helps parties to recognize that if a case is not resolved and the appellate process runs its course, there may be extensive litigation costs incurred.9 In some cases, through the mediation process, a party may come to realize that he or she cannot afford to pursue an appeal and that the cost of victory may be prohibitive, since success may mean a new trial and perhaps even another appeal.

The Importance of Timing in Appellate Mediation
The structure and timing of an appellate mediation can be critical to the process. In some cases, the key to success is beginning the process as early as possible — even before the record on appeal has been completed.10 This early approach to mediation can be useful to both the parties and the court because it results in significant savings to the litigants and precludes the appellate court from having to engage in any work on those cases that are successfully resolved through the appellate mediation process. Mediation conferences can be scheduled well in advance of the deadline for the filing of the initial brief.11 Moreover, in an early mediation context, even where the entire dispute is not settled, there is still the potential for substantial benefits to the parties through the narrowing or resolving of some of the appellate issues, thereby significantly streamlining the appellate process.12

However, in other cases, especially those where the party defending the appeal feels very confident in his or her legal position, it may make sense to schedule the mediation conference after the initial brief has already been filed. If the initial brief demonstrates the strength of the appellant’s legal arguments, it may make the opposing party recognize that his or her status as the prevailing party is not guaranteed. Without the benefit of having reviewed the initial brief, the appellee may not have enough information to truly assess the risk of reversal. Once a party has reviewed a strong brief and recognizes the possibility that a favorable order or judgment is likely to be set aside, a newfound willingness to compromise, which otherwise may not be present, may arise. The knowledge that the trial court may have been wrong in its ruling may induce the appellee to try to mediate from the position as the apparent winner of the dispute.

Florida’s Appellate Mediation Programs
• The 11th Circuit Court of Appeals — In 1992, the U.S. Court of Appeals for the 11th Circuit initiated its appellate mediation program.13 Since the inception of the program, hundreds of appeals are resolved each year through mediation.14 In the 11th Circuit, certain categories of cases are excepted from mediation, such as cases where a party is proceeding pro se or is incarcerated, as well as habeas corpus and immigration appeals. Otherwise, virtually all civil cases are eligible for mandatory appellate mediation.15

Appellate mediation in the 11th Circuit is conducted, at no charge to the parties, by the court’s mediators, who are full-time court employees, pursuant to Federal Rule of Appellate Procedure 33 and 11th Circuit Rule 33-1.16 Parties may substitute a private mediator for the court mediator upon agreement of all parties, though at their own expense.17 Mediation is scheduled after court of appeals docketing and before the briefing process begins.18 In addition, the mediator has authority to adjust the briefing schedule if the following conditions are met: All parties agree to an extension of time; the extension will facilitate settlement; the deadline for submitting the brief has not passed; and counsel has not previously filed a motion for an extension of time.19 Importantly, however, practitioners must remember that mediation in the 11th Circuit does not automatically stay the appellate proceeding, which means that all appellate deadlines will remain in force unless motions for extension are sought.20

Before proceeding to mediation in the 11th Circuit, parties are required to submit a civil appeal statement and a confidential mediation statement, both of which are prepared by counsel.21 Similar to mediation at the trial level, the confidential mediation statement and mediator’s notes never become part of the court’s file and remain confidential at all times.22 Prior to the mediation conference, the mediator reviews the notice of appeal and the district court and court of appeal dockets, as well as the relevant portions of the record, in order to become familiar with the issues.23 At mediation, clients and all persons necessary to resolve the appeal, with full negotiating and settlement authority, must be present along with their counsel.24

If a settlement is reached, a joint or agreed motion to dismiss should be filed pursuant to Federal Rule of Appellate Procedure 42(b) and 11th Circuit Rule 42-1(a).25 Practitioners must be warned, however, that settlement does not automatically stay any actions that are required to be undertaken by counsel under the Federal Rules of Appellate Procedure, such as the ordering of necessary transcripts and the filing of briefs.26 Thus, if a brief is due prior to receiving an order on a motion to dismiss based upon a settlement, an extension of time to comply with the deadline must be requested from the court.

• The Fifth District Court of Appeal — Although at one point in time, most of the Florida district courts of appeal had mediation programs in place,27 currently only the Fifth District Court of Appeal maintains such a program.28 In the Fifth District, appellate mediation began as a pilot program in 2001 for civil and family law appeals from final orders where all of the parties were represented by counsel.29 Due to its success, the program became permanent in 2004.30 To date, 30 percent of all appeals sent to mediation in the Fifth District have been resolved through mediation.31

Appellate mediation in the Fifth District differs significantly from the 11th Circuit. A mediation questionnaire, which must be completed by the parties and filed with the court in all eligible cases, requires the parties to set forth the issues on appeal and to state their position on whether a mediation will be worthwhile.32 Selection of cases for mediation is then made by one of three sitting judges on the court, each of whom has become a Florida Supreme Court certified mediator.33 The judge who reviews the mediation questionnaire will not participate as a member of the merits panel on the case in the event that mediation is held, but is unsuccessful.34 If a case is selected for appellate mediation, participation is mandatory.35 If, on the other hand, the reviewing judge agrees that mediation will not be beneficial, the parties are advised of this fact by the court and the case proceeds through the appellate process.

Parties first try to mutually agree to a mediator from a list of over 200 mediators who are certified in civil, family, or dependency mediation by The Florida Bar and who have attended the Fifth District’s appellate mediation training.36 Although it rarely happens, if the parties are unable to agree on a mediator, the court will randomly select one.37

Unlike the federal 11th Circuit, parties will automatically receive an extension of all appellate deadlines upon receipt of the mediation questionnaire by the court.38 Thereafter, if the case is ordered to mediation, all appellate deadlines will be tolled for up to 45 days until mediation is completed.39 In addition, parties that are ordered to mediation bear the cost of mediation equally.40 If the case is not accepted for mediation, all deadlines will begin to run from the date of the letter informing the parties that the case has not been accepted for mediation.41

If mediation is successful, the court will dispose of the case as is appropriate in light of the settlement.42 This could include dismissing the appeal, remanding the case to the trial court for approval of the settlement agreement, or entering a stipulated order consistent with mediation settlement.43 If, on the other hand, mediation is unsuccessful, the appeal will continue its normal course through the appellate court.44

Although, at first blush, it may seem unproductive and counterintuitive to mediate a case where a winner and loser have already been decided, it must be remembered that so long as a case is pending on appeal, a party’s victory may be short lived. For this reason, the benefits of mediating a case at the appellate level should not be ignored. A practitioner should recognize and give serious consideration to the pros and cons of whether appellate mediation might be a useful tool in his or her case when proceeding on appeal. With a realistic appreciation of the inherent risks involved in any appellate proceeding, combined with effective advocacy, it may be possible to transform an angry appellant or appellee, who is facing the prospect of never-ending litigation, into a satisfied client with a settled case.

1 In 2006, Florida’s five district courts of appeal received approximately 24,000 appeals. In addition, the Florida Supreme Court received 2,500 cases that year. See In re Report of the Committee on District Court of Appeal Workload and Jurisdiction-Rule of Judicial Administration, 921 So. 2d 615, 617 (Fla. 2006).

2 Donna Riselli, Appellate Mediation, APP FL-CLE 26-1. §26.2 (2003).

3 Id.

4 Id.

5 Id.; In addition, statistics from the 11th Circuit Court of Appeals reveal that only 17 percent of all civil cases are reversed on appeal. See Mori Irvine, Better Late Than Never: Settlement at the Federal Court of Appeals, 1 J. App. Prac. & Process 341, 357 n.73 (1999).

6 Donna Riselli, Appellate Mediation, APP FL-CLE 26-1, §26.2 (2003).

7 Id.

8 Id.

9 Id.

10 Id. at §26.1 (2003).

11 Id.; Donna Riselli, Appellate Mediation at the First District Court of Appeal: How and Why it Works, 75 Fla. B. J. 58, 60 (Jan. 2001).

12 Donna Riselli, Appellate Mediation, APP FL-CLE 26-1, §26.2 (2003).

13 See 11th Circuit Court of Appeals, Kinnard Mediation Center, In the 11th Circuit, the Kinnard Mediation Center conducts mediation of civil appeals. Circuit mediators are located in Atlanta, Tampa, and Miami.

14 The Kinnard Mediation Center mediated 843 appeals in 2002; 893 appeals in 2003; and 925 appeals in 2004. See Robert J. Miemic, Mediation and Conference Programs in the Federal Court of Appeals: A Sourcebook for Judges and Lawyers, FJC-MISC-2006-2(2006).

15 Kinnard Mediation Center, Mediation in the 11th Circuit Court of Appeals 1 (2008), available at

16 Id.

17 Id.; Kinnard Mediation Center, Private Mediator Procedures for Mediation of Appeals 1 (2008), available at

18 Kinnard Mediation Center, Mediation in the 11th Circuit Court of Appeals 2 (2008), available at

19 Id. at 5.

20 Eleventh Circuit Rule 33-1(e).

21 Kinnard Mediation Center, Mediation in the 11th Circuit Court of Appeals 2, 4 (2008), available at

22 Eleventh Circuit Rule 33-1(c)(3), 33-1(d).

23 Kinnard Mediation Center, Mediation in the 11th Circuit Court of Appeals 2 (2008), available at

24 Id. at 3-4.

25 Id. at 5-6.

26 Id. at 6.

27 The First and Fourth district courts of appeal also had appellate mediation programs, which were abolished due to budget constraints. See Donna Risselli, Appellate Mediation, APP FL-CLE 26-1, §26.1 (2003).

28 See Fifth District Court of Appeal, Mediation,

29 See Vitakis-Valchine v. Valchine, 793 So. 2d 1094, 1098 n.2 (Fla. 4th D.C.A. 2001).

30 See Fifth District Court of Appeal, Mediation,

31 Id.

32 Mediation forms including the questionnaire can be obtained at

33 See Fifth District Court of Appeal, Introduction to Appellate Mediation Program,

34 Id.

35 Id.

36 See Fifth District Court of Appeal, Mediation information (cont.),

37 Id.

38 See Fifth District Court of Appeal, Introduction to Appellate Mediation Program,

39 Id.

40 Id.

41 Id.

42 Id.

43 Id.

44 Id.

Jeanette Bellon is an appellate attorney and an associate in the Miami office of Kubicki Draper.

Sharon C. Degnan is a board certified appellate attorney and partner in the Ft. Lauderdale office of Kubicki Draper. Both Ms. Degnan and Ms. Bellon practice in the areas of litigation support, appellate practice, and insurance coverage disputes.

This column is submitted on behalf of the Appellate Practice Section, Siobhan Helene Shea, chair, and Tracy R. Gunn, Kristin A. Norse, and Heather M. Lammers, editors.

Appellate Practice