Every so often, I get a prospective appellant who is convinced that filing his notice of appeal will intimidate his adversary, prompting him to “come to the table” to hammer out a deal.
Good luck with that.
It’s not that cases cannot settle on appeal. It’s that most of the time, the mere act of appealing or filing a writ petition does not generate much leverage because the odds are inherently against the success of the appeal. Consider that the reversal rate on appeals generally hovers between 20% and 25%. Would you be intimidated by those odds?
That said, cases do settle on appeal, and some factors in a given case can do a great deal to encourage both sides to settle. (I’ll cover some of those factors in a future post.) Recognizing that some parties, and especially respondents, are less likely to settle on appeal, some courts with mediation programs have required the parties to make some showing that the case has a chance of settling before the court will assign a mediator. Thus, even if the parties are willing to talk, they may not be able to take advantage of the free mediation services offered through the court, and will instead have to engage a private mediator.
For a good overview of the differences between trial-level mediation and appellate mediation, check out this older blog post from last year from mediator David Karp. David’s blog is one of the Member Blogs of the Month at the TEN Networks Blog, and I’ve gotten to know David a little through that group. His post is spot-on, and offers some insight he’s gained from volunteering his mediation services to the Court of Appeal.