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Why I Like Appellate Mediation So Much

April 10, 2014

Since about 2007, I have participated as a volunteer mediator for the California Court of Appeal, Second Appellate District.

Now, with a thriving, paid, private mediation practice, this is the only volunteer mediation I continue to do, but I continue for a very good reason:

The dynamics of appellate mediation are so different and interesting and these mediations give me such a great perspective about right and wrong to share with others, that I just won’t give them up.

In appellate mediation, unlike any other, a trial court has already ruled for one side or the other.

In other words, somebody has already won.

A judge or jury has already said that the winner is right and the loser is wrong.

This never sits well with the loser (“the Appellant”) who still believes that he or she is right, which is why the appeal is filed in the first place.

On appeal, it’s no longer a question, however, about whether one side is right and the other wrong. Now, it’s a question of whether the judge or jury was wrong.

In any event, the Appellant still feels as if he or she is right, and should win!

Notwithstanding, for the winner in the trial court (“the Respondent”), the risk of losing at trial has already passed, and since generally more judgments are affirmed than reversed on appeal, the overall risk for the winner may be seen by the winner as less or simply nonexistent.

Also, for the most part, particularly in appeals after summary judgment or trial, nearly everyone already has said all that could be said in testimony or argument, and so there are fewer facts, legal theories, or other surprises that may be considered when assessing the value of settlement on appeal.

Consequently, the winning side (“the Respondent”) generally feels much more justified in maintaining a hardened negotiating position and much less flexible in reaching a compromise with the losing side (“the Appellant”), which creates an additional challenge for the mediator.

(On the other hand, sometimes the Appellant is right on appeal, but the Respondent who won at trial often dismisses that possibility.)

Here’s why: On appeal, the risk analysis is different but not well understood.

Now risk is based upon the standard of appellate review – i.e., whether rules relating to “abuse of discretion,” “substantial evidence” or “de novo” review apply to overturn or sustain a judgment, and what the effect will be — whether the case ends or goes back to the trial court for another (expensive) shot at winning.

These standards of review are complicated and far beyond the scope of this piece today. Suffice it to say that litigants usually do not understand this shift to a standard of review analysis, and trial lawyers sometimes don’t either, which is one reason why an attorney specializing in appeals can be so helpful in appellate mediation.

All of the foregoing is interesting on its own, at least to me as a mediation practitioner.

But beyond all of the foregoing, what strikes me as most interesting in appellate mediation are the mistakes I have observed that people have made in assessing their own cases prior to judgment in the trial court and why they did not settle sooner.

That’s the heart of it for me.

There are two appellate cases I refer to all the time in mediation, as teaching opportunities for others (all the while maintaining confidentiality of course).

In one, I learned that a pre-trial mediation occurred and the case did not settle when the defendant offered only a small sum (less than $2,500.00), thinking that there was no possible way that the case could be lost.  Of course, I saw this case after entry of judgment in excess of $600,000.00 against this same defendant, which judgment obviously prompted the appeal. (The mistake: the defendant never would consider the weakness of her case and the possibility of losing.)

In another, a plaintiff sued on a lease containing an attorneys fee clause, but unexpectedly lost at trial. The appeal was from an attorneys’ fee award against the plaintiff for almost $1,000,000.00. (The mistake: so convinced that he would win, it never occurred to the plaintiff that the plaintiff might not be able to prove his case.)

I guess that the moral of the story is that some people simply refuse to believe, or incorrectly assess, the possibility of losing at trial. They believe they are right; they “know” they are right; and they are willing to go to the ends of litigation to prove they are right.

And sometimes they are not right.  Or the judge or jury disagrees with them.

So, what lessons can these “mistakes” teach to others in mediation?

Plenty.

That is the essence of why I still like appellate mediation so much.

I learn so much from them every time and have so much more to relate as examples for people who should settle and resist doing so.

***
David I. Karp is a full time mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com . He apologizes for any ads affixed to this post by wordpress.com; they are not his.

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