Appellate Appeal Part 2 – Minding Your P’s in Appellate Mediation
PROCESS – Follow It
Mediation success is enhanced by a structure with defined phases: 1) Pre-mediation planning 2) Opening the mediation 3) Exchanging information 4) Defining the problem and organizing issues (agenda setting) 5) Developing and negotiating solutions (brainstorming) 6) Concluding the mediation and 7) Post mediation follow-up. [1]
Let the mediation process work. Skipping one of the steps in the process lessens the chances for success. A discussion of the process with parties and attorneys prior to mediation helps alleviate some of the frustration that occurs when a participant perceives that the mediation is not proceeding fast enough or that little progress is being made. Trust the trajectory and ask those at the table to do the same.
PLANNING – The Second Most Important P
A pre-mediation conference with the attorneys, usually conducted by phone, is my first step in planning. Aspects of the case that are hazy or unapparent in initial documents can be clarified through informal conversation. Mediators have a chance to explain their unique mediation procedure and ask for additional information about the case that may be helpful to them. Logistics of coordinating a meeting time and place may seem to be the easiest part of the mediation. However, I find with busy schedules this is often a challenge. I arrange a time and location for the mediation via email and request that the parties reply to all to assist in coordination. I reserve my entire day and ask the participants to do likewise. This demonstrates a commitment to the process and a willingness to maintain progress instead of disrupting a potentially successful mediation due to time constraints.
Pre-mediation discussions present an opportunity for setting a tone of collaboration. The conduct of the mediator during pre-mediation serves as a role model for the entire process. Mediators begin practicing the most important P – showing that they are fully Present.
PRESENCE – The Most Important P
Research shows that establishing rapport is the number one mediator trait influencing the success of mediation.[2] To establish rapport with both attorneys and parties mediators must be fully Present. There is a difference between listening and understanding. Listening with empathy promotes understanding of the interests of the parties and uncovers non-legal issues that are often obstacles to settlement. People are more willing to work and stay with the mediation process when they feel their mediator “gets it” from their perspective. Getting it involves a grasp of the facts and the emotions behind the facts. A mediator who is perceived as being fully present and empathetic is more effective and trusted with case evaluation, risk assessment, and reality testing.
PRIME with POSITIVITY – Try It
Setting the mediation stage with optimism can be done throughout the mediation process. In the beginning of mediation establishing a hopeful attitude is contagious. Discouragement with the process often takes place after hours of a mediation session. Continuing an optimistic attitude encourages parties to work through their hurdles in reaching an alternative to continued litigation.
Although social scientists debate the impact of priming (exposure to one stimulus influences response to a later stimulus), I am an advocate of its use. Words matter. They set a tone that can continue throughout the mediation. If peppered appropriately throughout the mediation terms such as focus on the future, respect, collaboration, and progress drive the discussions in a positive direction.
PROTECT– Provide Safety
In the world in which we live we must plan for physical safety in our mediations. Prudent mediators have a safety plan in place to protect the physical safety of all involved in the mediation process.[3] It is also important to create an atmosphere of emotional safety. Safe space is a term that describes a space in which the mediator is non-judgmental, empathetic, and respects confidentiality. In this space mediators ask parties to do the very hard work of resolving a conflict that may have years of history in the making. Respecting physical needs for food and drink or taking a break promotes comfort in what may be a very difficult situation for parties. Good mediators recognize that conflict, and even tears, are a part of dispute resolution. Take cues from people’s body language. Do not be uncomfortable with emotional display. Set appropriate boundaries within which it is safe to express feelings as well as debate legal issues.
PRESENTATION – Mediator as Educator
We often fail to understand that for many parties, the appellate system is like a foreign land different from trial court mediation or litigation in ways they may not appreciate. Educate the parties by presenting pertinent process and substantive information so parties can make decisions based on a full evaluation of all the options available to them. In one of my appellate mediations after several long hours of work we discussed remand to the trial court as a possible outcome scenario. One party turned to his lawyer and asked, ”What judge will hear my case on remand?” When the party learned that the same judge who had heard the original case would be the one to hear the remand, the response was instant. “I am not going back before that judge! I want to settle this now.” Ten minutes later we were drafting a settlement agreement. Making sure the parties are educated in the appellate process is a vital role for the appellate mediator.
As appellate courts announce their decisions a mediator should read the opinions, digest the information, note, and file by subject for later referral. You can use your knowledge to educate. If attorneys are unaware of a particular case or relevant law, share what you know. Educate but beware of giving legal advice prohibited by the Alabama Code of Ethics for Mediators.[4] Attorneys will have their own opinions on application of the law. An informed discussion of applicable law is expected of appellate mediators. Include the parties in legal discussions so that they may better understand their case and knowingly evaluate their options.
PROBLEM SOLVE – Engage the Right Brain
Brainstorming options is a technique familiar to mediators. In this process, the right brain, the emotionally driven part of brain, is accessed. It is this part of the brain that also fosters creativity and promotes out of the box thinking.[5] Parties exercise this part of their brain in response to the mediator tactic of eliciting (see Party Participation paragraph below). Mediator proposals of options intended to jumpstart the process or keep it moving are usually appropriate and appreciated by parties. The flexibility to fashion an option tailored to the uniqueness of the parties’ dispute is the beauty of a mediated settlement. The opportunity to resolve other collateral issues, not before the appellate court, is present.
PARTY PARTICIPATION – Consider Facilitative Techniques
A recent study of child access cases in Maryland state courts evaluated mediator strategies. While reflection of a party’s emotions and values helped to establish rapport, eliciting was the technique found more likely to bring about settlement and a better understanding between the parties.[6] Eliciting techniques require asking the parties to think of solutions and asking how solutions might work for them.[7] A common mediation model of relying primarily on the attorneys to negotiate a solution is expanded to encourage more participation from the parties themselves. This approach moves toward a more facilitative model of mediation addressed by the Alabama Rules of Appellate Mediation.[8] Additionally, the authors of Appellate Mediation, an American Bar Association publication, encourage a facilitative approach for appellate mediation with liberal use of joint sessions.[9] By having joint sessions the parties are able to better grasp the perspective of the opposing party even though they may not agree. A skilled mediator can facilitate conversation in joint sessions resulting in a less time consuming process and a greater chance for a global and more satisfying settlement.
PATIENCE – Develop It
Eliminating or short changing any stage of the mediation process reduces the chance for optimal success. It is human nature, especially for attorneys, to want to jump directly to the negotiation phase of mediation. Practice patience and resist this urge. Follow the process. Trust the trajectory.
PERSISTENCE – It Pays Off
Success in mediation is often defined as settlement at the mediation table. The inclusion of other benefits of mediation for those cases that do not settle at the table broadens the definition of success. For the cases that do not settle at mediation, a sizable percentage will settle afterwards. Data in one court-connected program reveals about a third of cases settle the day of mediation, a third do not settle, and a third go on to settle a few weeks after the mediation.[10] Mediator follow-up increases the settlement rate and is a recognized trait of a good mediation. Mediators who follow up can be instrumental in bringing about settlement. One author of Appellate Mediation articulates persistence by stating, “Do not give up until the parties tell you to stop!”[11]
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ENDNOTES
[1] Brendon Ishikawa & Dana Curtis, Appellate Mediation: A Guidebook for Attorneys and Mediators 111-12 (2016).
[2] The Secrets of Successful (and Unsuccessful) Mediators, 8, Disp. Resol. Alert 1, 1-6 (2008), available at
https://www.jamsadr.com/files/Uploads/Documents/DRA/DRA-2008-Winter.pdf.
[3] See Association for Conflict Resolution Taskforce on Safety in ADR, ADR Safety Planning: Recommended Guidance, available for download at
[4] Alabama Code of Ethics for Mediators, Standard 5(b)(4) (1995).
[5] Kate Scharff, M.S.W. & Lisa Herrick, Ph.D., Navigating Emotional Currents in Collaborative Divorce 97 (2010).
[6] Deborah T. Eisenberg, What We Know and Need to Know About Court-Annexed Dispute Resolution, 67 S. C. L. Rev. 245, 260 (2015-2016) (discussing Maryland Administrative Office of Courts study on child access mediation).
[7] Id. at 260.
[8] See Ala. R. App. Mediation 5(h)(7) (2004) (“Because appellate mediation is based on the principles of self-determination by the parties and the impartiality of the mediator, the mediator may apply the facilitative model of mediation.”).
[9] See Ishikawa & Curtis, supra note 1 at 130, 233.
[10] Ishikawa & Curtis, supra note 1 at 151-52.
[11] Ishikawa & Curtis supra, note 1 at 268. Compare Ala. R. App. Mediation 5(h)(7) (2004) (“The mediator will also attempt to generate offers and counteroffers and may have several follow-up mediation sessions by telephone or in person until the appeal is settled or it is determined that it will not settle.”).