Why Mediate While a Case is on Appeal?
by Tennessee mediator Margaret M. Huff

Some trial attorneys ask - why mediate a case that is on appeal?  Appellate mediation is an effective settlement tool.  It can provide a forum for:

  • effective settlements: provide a forum for new or renewed settlement discussions; a mechanism to engage in settlement discussion post-trial without appearing “weak” to other side;
  • information-sharing: expand the information base on which parties make key decisions in litigation and settlement;
  • creative, constructive and workable solutions: expand parties’ opportunities to act creatively and constructively; enable the parties to participate in resolving the dispute and create workable, mutually satisfactory solutions with high rate of compliance;
  • risk assessment: assess, and in some cases eliminate, risks of appeal;
  • cost reduction: reduce cost of appeal and possible further trial proceedings;
  • efficiency: efficiency, including help resolving issues that do not require court decisions; reduce time to resolution;
  • global settlements: create opportunity for settlement of related disputes among the parties;
  • addressing non-legal aspects of litigation:  may preserve/heal relationships; expand the parties’ tools for dealing with economic, psychological, and/or social dynamics that underlie most cases;
  • respect for courts: enhance respect for courts by providing dispute resolution tools that give parties an opportunity to try to solve their problems with some help from a court-sponsored appellate mediation program; and
  • quality  justice: contribute to the quality of justice, even in non-settled cases; mediation process can highlight strengths and weaknesses of each party’s position, thereby encouraging parties to narrow issues and present more focused briefs and better oral arguments on appeal.

As former Chief Justice Burger once said, "The notion that most people want black-robed judges, well-dressed lawyers, and fine paneled courtrooms as the setting to resolve their dispute is not correct.  People with problems, like people with pains, want relief, and they want it as quickly and inexpensively as possible."  Warren E. Burger, "Our Vicious Spiral," Judges Journal 22, 49 (1977).  Appellate mediation is an effective tool to assist clients who want to get past their legal disputes.

Additional information:
  • for information on Rule 34, Tennessee Rules of Appellate Procedure, regarding voluntary appellate mediation in Tennessee, and Rule 37, regarding mediation of workers compensation cases, go to ADR Resources: Appellate ADR

Copyright Margaret M. Huff (2007-2010).  All rights reserved.

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