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Mediation Tip: The Importance Of Early Appellate Counsel Actively Participating In Appellate Mediations

October 4, 2012

Mediating a dispute that is already on appeal is no picnic.  Some would suggest it is an impossible task.  But, remarkably, mediation of a dispute that is still in the early stages of an appeal can be surprisingly successful if conducted appropriately.

And, in point of fact,  reportedly as many of 30% of  those total matters selected by Florida’s Fifth District Court of Appeal for appellate mediation actually resolve pre-appeal.

Those statistics are likely skewed by both selection and subject matter.  I suspect, for example,  that matters of law or matters involving large sums of money (or principle) may fare far worse for any number of valid reasons.  But the larger point is that appellate mediation can be very worthwhile in some disputes.  Even for parties that prevailed at trial.

The art (yes, art) of successful appellate mediation is also a very large subject.  Too large for one article.  However, one simple, but essential recommendation to improve any parties’ chances of success in appellate mediations(which some appellate courts require) is the early,  involvement and participation of appellate counsel in the formal mediation conference.

Obvious you say?  Not really.  (Why do you suppose some appellate courts have a special rule about the subject of the mandatory appearance of APPELLATE counsel at appellate mediations?)

Among other common “excuses” for the frequent non-attendance of appellate counsel at the earliest stages of an appeal, including most appellate mediations, is, of course, cost.   Trials are expensive and both sides, regardless of who prevailed, have already invested large sums of monies on attorneys fees.  Gaining approval for more “unnecessary” fees can be a daunting task.

However, among other common reasons, I suspect, for an absence (in fact or in spirit) of appellate counsel at appellate mediation is their relative newness to the cause or conflict.

Assuming the appellate counsel were not trial counsel (some few trial counsel also perform as their own appellate counsel), and their client contact has, so far, been minimal (usually no substantial involvement, or cost or fee, has been incurred) it is foreign for them to be asked to lead in the appellate mediation discussions.

Further, often the client’s reliance is totally vested in their trial counsel.  And, particularly if that side is, so far,  the prevailing party; they LOVE their champions, their trial counsel.  (Maybe not so much love on the other side?)

And, any attorney who did not prevail, likely is quite biased about wanting “another shot”.  “What do we need another attorney for mediation?  We couldn’t settle before,  why would we now?  Let’s save on those unnecessary fees now and get on with the appeal!”

Penny-wise and pound foolish?

Interestingly, there is also a very real double-whammy potential for conflicts of interest with both counsel advising a client!  The trial attorney may not enjoy another attorney revealing weaknesses in an appeal that may have caused by the trial counsel.  The appellate attorney may also be reluctant to advise of such weaknesses or even against an appeal when such advice could means a loss of  a referral source or the income for undertaking the appeal.  And, there are many others.

And, frankly, those parties who have already apparently rejected any pre-trial settlement for a trial by a judge or jury, are  not suddenly likely to believe a voluntary pre-appeal settlement is in their best interest.  And, again, particularly if they WON the trial!

But trial is also now over and the practice of the appellate side of things is as foreign to most trial warriors as the trial process is to most appellate types.  But, BOTH types of counsel, are now required for any client to fully grasp the advantages, if any, to a settlement at appellate mediation rather than slogging on through the appeal.

And, the mediator will need the assistance and information from every possible source to educate the parties to trying to find a valid  resolution option to the finality of an appeal by others, again, out of their control.

As usual, good lawyers will overcome all conflicts of interest or even self-interests and truly serve their clients.

And, most  appellate lawyer specialists are more than willing to work with trial counsel to obtain their services at a reasonable value for these mediations.  After all, the large majority of these cases will not resolve at mediation and will need an appellate attorney.  And, should the matter resolve, the appellate attorney ends with some fee, a satisfied client and a really satisfied referring attorney who will now undoubtedly call again!

But there are known factors that mediators use to  allow a substantial percentage of appellate mediations to succeed.  And, often, at least in concert with the trial counsel, these factors, in my opinion, are best explained to any client, by a mediator, in combination with both trial and appellate counsel, conferring together.

At this early stage, the appellate counsel desperately needs to know the true appealable issues and the unvarnished facts.  And, here is where trust comes in.  Because there is, as yet, no transcribed trial record, and likely (but unfortunately) the appellate counsel was not present during the trial, he/she is totally dependent upon the trial counsel for the reliability of those facts and issues to be properly evaluated.

And, the trial counsel, is now totally dependent upon the appellate counsel to fairly advise him/her and their client about the likelihood of their appellate chances, on either side of an appeal.  If the appeal does not go as anticipated by the client, although the appellate counsel will receive some critical thought, in the end, it will be the trial counsel who takes the brunt of the blame.

But, it is the client who really gains the most from having as much early information as possible.

If the client has prevailed at trial and can now walk away a winner, intellectually, without the expense of an appeal,  most would prefer to do so and now, not later.

If the client has lost and likely will lose again, you can bet they will want to know so they can cut their losses and not throw good money after bad.

Having the right counsel in attendance allows the right decision to be made.

You know how much I advocate having the right participants at any mediation.  In appellate mediations, it is critical that both the client’s trial counsel and their appellate counsel be present to allow the client their best and most informed choice of resolution or appeal.

What Do You Think? Your Insight Can Be Helpful To Others.

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