The following is for the benefit of parties who are new to mediation. Although appellate mediation involves particular challenges and skills, the essential format and ground rules are the same as in other types of mediation.
No longer so “alternative”
Mediation is often referred to as a form of “alternative dispute resolution,” or “ADR.” And, 25 or so years ago, “alternative” was a good description. But, today, mediation is so mainstream that the adjective seems dated. All cases reach a resolution one way or another. But more cases are probably resolved now through mediation than with court-imposed outcomes.
Taking control of the outcome
One of the benefits of mediation is that it can bring closure to a dispute far more quickly than continued litigation. And it can also save a lot of money in attorney fees. But perhaps the greatest benefit is that it gives the parties control over the outcome. Mediation gives parties the opportunity to decide for themselves how a case will be resolved, rather than having someone else — such as judges at the Court of Appeal — make the decision for them.
Some parties who are new to mediation confuse it with “arbitration,” which is another form of so-called “alternative dispute resolution.” But the two processes are very different. An arbitrator imposes a decision, in much the same way as a judge does — except in a private proceeding outside of the court system. And, usually, that decision is binding on the parties. But a mediator does not impose any outcomes. Rather, a mediator works with the parties to reach an agreement about how to resolve a dispute.
Mediation is a voluntary process. You don’t have to mediate. And if you do mediate, you don’t have to reach a resolution.
Some people see mediation as being about reaching a “compromise.” But that word misses the mark. Yes, mediation involves negotiations. But mediation is really about reaching a good resolution for the parties given the circumstances they are in. The goal of a mediation is to identify a resolution that is better for both sides than continued litigation.
What happens at a mediation
If you are new to mediation, you may be wondering exactly what happens. No two mediations are the same. But typically, the mediation takes place at a location where each side has its own room. Ideally, the two sides meet at some point in a joint session with the mediator. And in appellate mediations, joint sessions can be especially important. But mediation typically also involves the mediator spending time with the parties and their lawyers in separate sessions of varying lengths, listening to what they have to say and gradually exploring possible resolutions. This can take place over several hours or a full day. A few mediations go into a second day. Often, a settlement is reached before the parties leave a mediation. But sometimes the settlement — if there is one — follows a little later.
Video mediations can recreate all of the above, with different “virtual rooms” separating the parties and the mediator and lawyers being able to move between them as needed as well as gathering together in a joint session.
A mediator is often a lawyer, but the mediator is not acting as a lawyer for either side. The mediator is neutral. That is why it is important that the parties have their own lawyers present.
Mediation is a confidential process. Nothing that is communicated in a mediation can be used in the continuing litigation if the case does not settle. And if a party tells the mediator something in a separate session — without the other side present — the mediator can’t share that without permission. These rules of confidentiality are sacrosanct and are an important reason why mediation can be so effective. Confidentiality allows the parties to try on ideas and explore outcomes without fearing that they are somehow giving something up if no settlement is reached.
Enforcing mediated settlements
If the parties agree on a resolution, they then enter into a written settlement agreement, often before leaving the mediation. Most often in appellate mediation, this involves the appeal being ended. And assuming the settlement has been drafted properly, it is binding on the parties. That means that it can be enforced in court. So while the process leading up to a settlement is entirely voluntary, a mediated resolution — once reached — is as certain and firm an outcome as one imposed by a court.