ARC Articles

In Appeals, Mediation Becomes A New Ballgame

by: Professor A. Marco Turk, Esq.
©2010 The Daily Journal Corporation

This is the introductory column that commences a monthly effort to analyze the various aspects of mediation as the current ADR process of choice. The goal will be to consider how to make the process a more effective tool to resolve disputes without the high cost of litigation. Mediation is the voluntary process that affords disputing parties the opportunity to work together to resolve their underlying problem with the help of an independent impartial "neutral" third party usually of their choice. The parties exercise self-determination at all times, while the third party is in charge of the procedural aspects of the process that hopefully will facilitate resolution. With such a lofty goal, why is it that mediation does not always succeed?

Simply because parties and/or their lawyers may not have the necessary process education or desire to effectively utilize the opportunity, disputants either fail to understand the message or do not listen to advice of counsel, parties fail to appreciate that such advice and forecasting outcomes are not the same, poor decisions on the part of clients and/or their lawyers and failure to understand what actually is at stake, among other things.

Since the Ventura courts initiated the first mandatory mediation program in California in 1993, the courts of this state have increasingly turned to this ADR process to lighten their caseloads. Beginning in 1999, the court-connected mediation programs in California were extended to cases on appeal by the 1st District and soon followed by the 2nd District. Because one party has won and the other lost, historical positions are fully entrenched by the time a case goes up on appeal. So it is interesting to analyze the opportunities for a successful mediation at the appellate level.

Appellate mediations differ from those at the pre-trial level because of the standards of review and rates. Statewide, the reversal rate for civil appeals is approximately 22 percent. When we look at the reversal rates for specific standards (5 to 10 percent for substantial evidence or abuse of discretion, and 30 to 35 percent for de novo review), however, they vary considerably. While both the appellant and the respondent must agree to mediate, once that has been accomplished the court makes its order mandatory, and failure to comply with the procedures set forth in its order "may result in the imposition of sanctions."

Rather than concluding outright that there is very little percentage in mediating on appeal because each party has its position confirmed at the trial court level, it is prudent to consider how an appellate mediator can proceed to effectively utilize the mediation process to achieve settlement.

Contrary to perception, it is not always the respondent who is the resistant party. Many times the appellant has unrealistic expectations leading to a lost opportunity to achieve settlement. The percentage figures that we have seen can provide the mediator with the tools to bring "risk adversity" into the caucus room that will assist in facilitating settlement. For example, a respondent facing a risk adversity of 30to 35 percent on a de novo review or an appellant looking at an average 70 percent possibility of an affirmance (perhaps even a 90 to 95 percent burden!) quickly becomes more interested in seeking ways to avoid such an eventuality.

The appellate mediation process differs considerably from that utilized at the pretrial level. On appeal, there is an intricate initial approach that includes an extensive pre-mediation telephone conference with counsel for both parties that can be extended to separate confidential communications later with the mediator. Detailed briefing usually precedes the mediation session, and counsel are encouraged to make sure that they have fully explained the mediation process to their clients, along with the roles of the parties, counsel and the mediator.

And the mediator establishes with the lawyers what approach will be utilized, i.e., directive, evaluative or facilitative. Also discussed is whether everyone will attend the joint session in the same room except for necessary caucusing that may interrupt the process from time to time.

Unfortunately, even though everyone may agree in advance to the use of a facilitative approach by the mediator (rather than directing the parties or evaluating their case) in a true joint session, on the day of the mediation many times this all goes out the window. Either or both sides have somehow determined on their own that the process will function better for them if they don't have to face each other around the same table.

It is much easier to demonize the other side in private instead of facing them across the table and attempt to humanize the problem. This usually results in failure of the process and lost settlement opportunities. Once everyone leaves the room with further hardened positions, it is very difficult to resurrect the opportunities later. The rolls of the appellate court are replete with examples of failed appeals that are costly in many ways to those who were hardliners in mediation.

So how can we change this mindset to provide the optimal atmosphere for successful settlement? Since the effective approach requires that the parties understand their own as well as the other party's interests and the practical realities that they each face, the mediator needs to be able to help the parties explore options and arrive at a mutually acceptable resolution of the dispute. This cannot be accomplished unless there is a collaborative process utilized to resolve the dispute in a way that will best meet the respective interests and underlying needs of the parties. Working from different rooms with the mediator shuttling back and forth completely fails in this regard.

To be effective in an appellate mediation, the mediator must insist on and enforce the occurrence of a true joint session with appropriate caucusing when necessary so that a combined facilitative/evaluative mediation approach can be used.

A. Marco Turk is professor and director of the Negotiation, Conflict Resolution, and Peacebuilding Program at Cal State University Dominguez Hills, a mediator for the California Court of Appeal (2nd District), and a member of ARC. His column appears here on the first and third Fridays. He can be reached at

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