Appellate Mediation: The Art of Settling After the Trial Court Has Ruled

If you lost the trial, think about whether you have a good reason to appeal and if you can afford it. If you won, consider if the other side might appeal and if you want to go through that. Appellate mediation can be a way to end the case without the costs and risks of an appeal. Both sides need to be willing to compromise for it to work. Mediation is a way to resolve legal disputes before they go to court. In Florida, only the Fifth District Court of Appeal has a formal mediation program, while other courts may only order mediation if the parties agree to it. In the U.S. Court of Appeals for the 11th Circuit, mediation is a big part of the process and is managed through the Kinnard Mediation Center. Both courts have a good track record of resolving cases through mediation. When someone files an appeal in the Fifth District, they might have to go to mediation if the case meets certain requirements. Both parties have to fill out forms about the case and whether they think mediation is a good idea. A judge will decide if mediation is necessary. If the judge orders mediation, the deadline for filing documents is paused. But the appellant can still file their initial document. Mediation has to be finished within 45 days. In some state courts, if a motion for mediation is filed soon after the appeal is made, all deadlines are put on hold until the court decides on the motion. In the 11th Circuit, the parties can choose whether to continue with their written arguments during mediation. The court usually schedules mediations before the written arguments are submitted. It’s important to think about when to mediate – before or after filing written arguments – depending on the strength of your legal case. Once the court orders mediation, the appellant has 10 days to respond and suggest a mediator. If both parties can’t agree on a mediator, the court will choose one from its list. The Fifth District’s website has a list of approved mediators you can search through. Just keep in mind that the Fifth District requires certified appellate mediators, so not all mediators on the list are actually approved for appellate mediation. In the Fifth District, parties have to pay for a mediator unless it causes financial hardship, in which case they can have a mediator for free. In the 11th Circuit, the KMC picks the mediator unless the parties want to pay for their own. Before mediation, parties have to write a private statement for the mediator about the case. It should include the facts, issues on appeal, and the party’s position. The statement should start with a brief introduction to the case to grab the mediator’s attention. After a trial, if one side wants to appeal the decision, they write up a statement that explains their side to a mediator. This statement includes the facts of the case, what happened in court, and the issues they want to argue on appeal. It also talks about whether they are willing to settle the case before the appeal, and why they think they might or might not be able to agree on a compromise. The statement needs to be clear and interesting, and should honestly say where the case is strong and where there might be problems. It’s important to write a good statement to help the mediator understand the case and make it more likely that the sides can talk things out and reach a settlement before going through with the appeal. In a court mediation, the people involved in the case, their lawyers, and anyone who will be affected financially by the outcome have to participate. If they don’t, they could get in trouble and have to pay for the expenses caused by their absence. The person with the power to make a decision about settling the case has to be there too. During the mediation, each side gets to give a little speech about their case. Usually, the person who is appealing the court’s decision goes first. During the opening statement, the lawyer gets to talk without being interrupted by the other side. The lawyer should point out the strengths of their case and the weaknesses of the other side’s case. After the opening statements, the mediator will separate the parties into different rooms to try and work out a settlement. If the mediation is done by phone, the parties will be put into virtual rooms to talk with the mediator privately. Basically, when you’re trying to settle an appeal, the mediator will help both sides make offers and counteroffers until they can agree on a middle ground. The mediator will point out the weaknesses in your case and talk about things like the legal issues and the decision-making process. It’s important to consider the standard of review when deciding whether to settle your appeal. If you’re the appellant and your only argument is about the evidence, you should consider mediation instead of pursuing the appeal. If you’re the appellee, mediation may still be a good option because it saves time and money, and there’s always a risk of the appeal not going in your favor. Appellate mediation is a good way to settle a case, even if you won at trial. The court rules in Florida and the 11th Circuit require mediation in certain cases. Both parties need to be willing to compromise for it to work. The appellant, who is the one appealing the decision, should know that it’s hard to get a case reversed and should be ready to make a fair offer. The appellee, who won at trial, shouldn’t expect to get the entire amount awarded and should also be willing to compromise. In Florida, if parties try to solve their dispute through mediation, the time for filing legal documents in court is paused. This gives them more time to work things out. The 11th Circuit Court of Appeals also has a similar rule for mediation. This can make the whole appeals process take a long time, sometimes over a year, but it also gives people more chances to settle their disagreements. In Florida, the cost of appealing a civil case can be very expensive, often starting at $30,000 and sometimes exceeding $100,000. It’s important to consider settling the case to save money for your client. Statistics show that defendants have a 40% chance of having a decision reversed on appeal, while plaintiffs have a 20% chance. Diane G. DeWolf, a board-certified appellate attorney, wrote this article with the help of mentor Kathi Giddings. The Appellate Practice Section of The Florida Bar provided this information.

Source: https://www.floridabar.org/the-florida-bar-journal/appellate-mediation-the-art-of-settling-after-the-trial-court-has-ruled/