Mediating on Appeal

How Can a Case be Mediated on Appeal?

Many of the reasons to mediate at the trial court level still exist on appeal:

• Time, expense, risk of loss,

• Preservation of a relationship,

• A desire to make or avoid legal precedent.

An agreement crafted through mediation may make more sense than continuing with the appeal. For example:

• A party who has won a monetary judgment at the district court might prefer to settle for a reduced amount to receive payment now and avoid risk that the judgment could be disturbed on appeal.

• A party who has lost at trial might be willing to settle for a sum that represents the cost of defending the appeal.

• Occasionally the underlying result takes everyone by surprise and each side understands the very real risk on appeal.

In other cases, mediation makes sense because the appeal will not fully resolve the dispute. For example:

• The appeal may involve a preliminary ruling, such as an order granting a preliminary injunction

• Related proceedings may be pending in another forum (e.g., state court or bankruptcy)

• Even a successful appeal often results in remand and continued litigation in the district court

Timing Considerations

Appeals can take over two years. Sometimes parties do not want to wait that long for resolution. For example:

• The sale of a company might be delayed by the litigation.

• An individual wants to end the stress and uncertainty of litigation and is ready to move on.