THE TRIAL IS OVER. The jury has just returned a verdict either for or against your client. Or maybe the judge has granted a motion for summary judgment. The parties mediated the case before trial without success. An appeal is inevitable. Think the opportunity to negotiate a settlement has passed? Think again. The finality of a trial court judgment and the framing of issues on appeal may actually help the parties settle their dispute. With an overall statewide reversal rate of 36% in civil cases,1 an appeal does not necessarily end the litigation process – it may be only another step in a seemingly endless and costly road to resolution. This article attempts to offer practical considerations for the mediation of cases post-trial and on appeal by addressing: (1) the advantages of appellate mediations; (2) the types of cases best suited for mediation in the appellate context; (3) major obstacles to settlement; (4) the best time to mediate a case after trial; (5) the selection of an effective mediator; and (6) court mediation programs.

1. Advantages of Appellate Mediation -

At first blush, mediating a case on appeal may seem like an exercise in futility. One party has a judgment, ostensibly leaving the other party with no bargaining power. But there are some distinct advantages to an appellate mediation. First, a posttrial settlement may be a desirable alternative to the additional costs and inevitable delays of an appeal. Although Texas appellate courts have made great strides to reduce the average time from filing to disposition,2 the appeals process still can take between one and three years for a complex civil case. For the party holding a money judgment, a mediated settlement not only eliminates the risk of reversal, but also promises an earlier payday. Second, like all settlements, the voluntary resolution of a case post-trial provides the parties with certainty and closure. The ability to more accurately assess the chances of success on appeal based on a fully developed record and established standards of review may enhance the prospects for negotiating a settlement. Third, unlike a pretrial mediation where risk assessment is complicated by a multitude of fact-related variables, only legal issues will be decided on appeal. Focusing on legal issues takes emotion out of the equation, making the case easier to settle. Fourth, by the time a case reaches the appeals court, the parties have been forced to recognize certain weaknesses in their respective positions as a result of the trial process. This may minimize unrealistic expectations and lead to a more productive settlement dialogue. Finally, the risk of a published appellate opinion establishing adverse legal precedent for future cases may make settlement desirable. This is particularly true for some tort and business cases, such as those involving insurance companies and product manufacturers.

Originally published in The Advocate on October 12, 2013.