JAMS Virtual Roundtable: Appellate Mediation

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Whittington: Nina, what are the important differences between trial and appellate mediations? What are some of the major obstacles to settlement at the appellate level? What are some of the major opportunities for settlement that are available in appellate mediation?

Cortell: For better or for worse, with an appellate mediation one variable has been eliminated: there is a trial court determination of the merits. The risk of how a jury and/or trial judge might resolve the case is no longer present; there is a winner and a loser. There remains, of course, the risk of what will happen on appeal, but that analysis must be viewed through the lens of the standard of review, which might or might not be deferential to the lower court. So...

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