July 21, 2020 In Mediation

Appellate Appeal Part 1 – Why I Love and Prefer Appellate Mediation

STRUCTURE

The Alabama Rules of Appellate Mediation provide a time frame for mediation (63 days from Order for Mediation) that is helpful to keep parties from continued delay. Yet there is flexibility built into the Rules such as an allowance for time extension at the request of the mediator. From provisions for initial case screening to a direction for a mediator’s report, the Rules supply consistency in the process. Forms provided in the Rules also increase consistency and structure throughout the program. The Appellate Court program administrators are readily accessible and helpful.

 

FEWER SURPRISES

There is little need to withhold information. Strategies and evidence have already been laid out before the trial court. The Appellate Court does not consider new evidence or re-try a case. Surprises in mediation can take time and effort to unravel. Appellate mediation is more predictable in content leading to a more streamlined process.

 

STANDARD OF REVIEW, PREDUDICIAL ERROR, AND THE LAW BECOME FOCUS IN CASE EVALUATION RATHER THAN MORE SUBJECTIVE ISSUES REGARDING PERSUASIVENESS OF EVIDENCE  

This is great if you are a nerd like me! I love research and legal analysis.  Caution: discussion of legal issues often leaves out parties who may be unfamiliar with legal jargon. Seek to include parties in case evaluation.

 

ABILITY TO PRACTICE STATEWIDE EFFECTIVELY

Evaluating what a particular trial judge will do is only important if a case is remanded. The Appellate Court will analyze a case and apply the law without regard to the judicial circuit in which a case originates. This minimizes guessing and a need to know the inclinations of a particular trial judge in gaging the risks of going forward with litigation.

 

OPPORTUNITY TO RESOLVE THE CONFLICT AND NOT JUST THE DISPUTE

An opportunity for a global settlement of dispute and not just the issues on appeal still exits at the appellate level. Parties may have worked though some of the raw emotions that prevented settlement at the trial level. Reviewing previous attempts at settlement and why they failed is valuable historical knowledge for the appellate mediator. This knowledge may be key to a global settlement.

 

VALUE OF “GETTING THIS OVER TODAY” IS ALWAYS ON THE TABLE

This cannot be underestimated! Many times the parties have been in litigation for years. As lawyers and mediators, we sometimes fail to recognize the full extent of not only the economic but also the emotional toll that protracted litigation brings. Exploring the value of immediate relief from the weight of litigation parties have carried, sometimes for years, is a powerful incentive towards resolution.

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