By James R. Verellen, Appellate Court Commissioner

I am convinced that many more civil appeals would settle if the parties and their attorneys would seriously engage in an objective and realistic analysis of the appeal. Often it seems an appeal takes on a life of its own, with the parties plowing their way through the appeal process assuming that their opponent has no interest in a “reasonable” settlement. A small percentage of appeals are voluntarily dismissed,1 but in my experience, if the parties have a genuine willingness to listen to an objective analysis of the appeal in a mediation setting, a settlement is possible in many civil appeals.2

Perhaps the most common barrier to settling an appeal is the perception that the party who won in the trial court has no incentive to compromise. All parties have an emotional and financial investment in every trial and there is a natural tendency to cling to the positions taken at trial. But the reality is that in most appeals all parties have a substantial common interest in bringing the litigation to an agreed resolution.

Dispute resolution scholars teach that settlement is much more likely if issues are framed in terms of what is to be gained rather than what is at risk of being lost.3 As a matter of common sense, once parties are convinced that they really have something to gain by entering into a settlement, compromise is much more palatable. In every appeal, a settlement allows the parties to gain back some control of the litigation process over which they have little control.

I often ask participants in a settlement conference to reflect on the lack of control they actually have over any legal proceeding, especially an appeal. Even with skilled briefing and articulate oral argument, the outcome is not within their control. On the other hand, an agreed resolution allows the parties to shape and structure a settlement based on their direct input.

Appellate Mediators

There is no magic formula. Each case is unique and each mediator has his or her own technique, but there are some approaches I believe enhance the possibility for settlement on appeal. Foremost is the utilization of a neutral mediator with appellate experience. Of course, attorneys negotiate the settlement of appeals without using mediators. But a mediator with appellate experience is able to convey the reality of the appellate process and to focus the attention of the parties on what they have to gain by settlement. Similar to pre-trial mediation, even if the mediator merely confirms what the attorney has already told the client about the chances of succeeding on appeal, that reassurance may overcome the client’s uncertainty about settlement.4

Retired judicial officers and attorneys who have appellate experience are well suited to mediate appeals. The established private mediation firms offer experienced and talented mediators for appeals. The Washington State Court of Appeals does

not utilize a formal settlement conference process, but if parties request a settlement conference in Division I, a commissioner is available to assist with settlement efforts.

The chance of settlement in most appeals is also enhanced if a mediator with appellate experience undertakes an informed analysis of the precise issues presented on appeal. Although it seems obvious, it is often critical to reinforce two very fundamental concepts:

      appellate courts do not make factual determinations; and
      the standard of review determines the outcome of most appeals.

Most attorneys carefully frame their assignments of error and issues on appeal, but appeals often contain veiled requests for the appellate court to revisit a factual determination made by the trial court or jury. Briefs frequently pay “lip service” to the typically deferential standards of review, but contain arguments that ignore those standards.

And most clients do not understand how appeals differ from trials. Often, the most important step toward settlement on appeal is to objectively face the realities of the appellate process. A mediator with significant appellate experience can offer a powerful analysis of the strengths and weaknesses of an appeal after reviewing critical portions of the record and studying the key legal authorities.

It’s Never Too Late

Another barrier to settlement on appeal may be the attitude that it is too late to bother with settlement discussions once the expense of perfecting the record and preparing the briefs has been incurred. To the contrary, any time is a good time for settlement discussions. Especially when the record has been prepared and the briefing filed, the mediator can provide a more precise analysis of the appeal.

Not all appeals are good candidates for settlement, however. When one or more of the parties is so entrenched in their position that they must be dragged to the settlement table or the appellant’s sole motivation is delay, even heroic efforts may not be productive. Most categories of civil litigation are well suited to settlement efforts, but appeals involving cutting-edge social or political issues, reform efforts by community groups or individual campaigns to vindicate a personal “cause” are unlikely to settle.

Preparations for a settlement conference should include a candid discussion between attorney and client of the realities of appeals.5 The mediator should be provided with a brief summary of the issues on appeal, key portions of the record and citations to important legal authorities. A confidential summary of any prior settlement discussions may be helpful. In most situations, the parties should attend the mediation and should arrive with authority to make decisions on settlement. Most importantly, the parties and their attorneys should be prepared to listen with an open mind to the evaluation by the mediator and to engage in a dialogue. Flexibility is important to any settlement.

Many civil appeals will settle if the parties are willing to objectively consider the prospects on appeal and to seriously engage in mediation. n

1 No precise numbers are available regarding civil appeals that settle. Roughly 1,500 notices of appeal and 150 voluntary dismissals are filed each year in Division 1 for all categories of appeals. Although “voluntary dismissals” include both unilateral dismissals in civil and criminal appeals as well as dismissals that are the result of settlements, many of the voluntary dismissals reflect settlements in civil appeals. My “ball park” estimate is that 10% to 15% of civil appeals currently settle.

2 When all parties to the appeal have requested and willingly participated in settlement conferences before me, more than 80% have resulted in an agreed resolution.

3 See generally, Russell Korobkin & Chris Guthrie, Heuristics and Biases at the Bargaining Table, 87 Marq. L. Rev. 795 (2004); Russell Korobkin, Aspirations and Settlement, 88 Cornell L. Rev. 1 (2002); Jeffrey J Rachlinski, Gains, Losses, and the Psychology of Litigation, 70 S. Cal. L. Rev. 113 (1996); Geoffrey C. Hazard, Jr., The Settlement Black Box, 75 B.U.L.Rev. 1257 (1995); Russell Korobkin & Chris Guthrie, Psychological Barriers to Litigation Settlement: An Experimental Approach, 93 Mich. L. Rev. 107 (1994).

4 Robert A. Baruch Bush, “What Do We Need a Mediator For?”; Mediation’s “Value-Added” for Negotiators, 12 Ohio St. J. on Disp. Resol. 1 (1996).