Appellate

Appellate Mediation in New Mexico: An Evaluation

Description
Examination of whether mediation could be effective at later stages of appellate process, and what the reaction of attorneys was to this mediation program.

Method
Examined court data to determine the rate of settlement in mediation as well as the amount of time spent by cases on the court docket. Also looked at questionnaires returned by attorneys between September 1998 and September 2000.

Sample Size
308 cases scheduled for mediation between September 1998 and June 30, 2000

Program Variables
Mandatory program begun in 1998. Mediations were conducted by a staff attorney trained in basic mediation methods. Services were provided free to the parties. Almost all cases that were screened into mediation had failed to resolve on the summary calendar. (A few cases were put on the regular calendar and screened in from there). Mediations were conducted by telephone. The study was conducted during the program’s first two years.

Full Findings
Of the 308 cases screened into the program, 88 settled through mediation. Statistical analysis revealed that the only variable that had an effect on settlement was the amount of time the case remained under negotiation – the longer it remained open, the more likely it was to settle. Attorney responses indicated that 86% thought the agreement reached was fair.

Cost savings to the court were calculated by comparing the need for one mediator and part-time assistant to mediate cases to the need for one judge and one law clerk to deal with each case that is not sent to mediation. More cases were settled annually than were assigned to judge and staff.

Significant time savings were found as well. The study compared mediated cases with those that were on the regular calendar because almost all mediated cases did not settle on the summary calendar and thus would have been moved on to the regular calendar. Mediated cases resolving in 266 days and non-mediated cases on the regular calendar resolving in 450 on average. (This presupposes that all mediated cases went through 150 days on the summary calendar, which is the average number of days to disposition for summary calendar cases).

Mandatory Mediation in the First Appellate District of the Court of Appeal: Report and Recommendations

Description
Examination of impact of mediation on litigant cost, court cost, and satisfaction with the judicial process in California appellate court.

Method
Examined data on resolution, asked attorneys to estimate cost differences caused by mediation, and asked litigants and attorneys their perspective on the mediation process.

Sample Size
1,328 appeals, of which 288 were submitted to the program

Program Variables
The program administrator selected cases for mediation; however, parties could request mediation as well. Mediation occurred as soon as possible after the filing of the notice of appeal. The mediation coordinator controlled scheduling. Mediators were attorneys, retired judges and justices, and professional mediators. The court provided training in appellate mediation. The program administrator assigned the mediator, but parties could agree to an alternate mediator.

Full Findings
The resolution rate was 43.2% (94/213) full settlement, with another 0.1% (4/213) partial. This compares to 32% of non-mediated cases that settled before judicial involvement. Family law and probate cases were most likely to settle. Attorneys estimated savings of $76,298 per case if it settled in mediation, but an increase of $7444 per case if it did not. This is an overall estimated savings for all mediated cases of $6,231,358. There were high levels of satisfaction with the process and with the fairness of the process. Satisfaction was lower for outcomes.

Report on Workers' Compensation Mediation Program of the Supreme Court of Appeals of West Virginia

Description
Examination of the efficacy of mediation of workers' compensation cases on appeal.

Method
Attorneys completed a questionnaire after the mediation session. Time to disposition was determined from court data.

Sample Size
862 cases mediated of 2020 cases filed

Program Variables
Mandatory program mediated by both staff and others compensated by the court. Services were provided free to the parties. The study was conducted at the end of the program's first year.

Full Findings
73% of attorneys were satisfied with the outcome of the mediation (27% very, 46% somewhat). Satisfaction was related to whether the attorney thought the other party was negotiating in good faith. Satisfaction was also related to whether the mediator was seen as facilitating negotiations or not. Satisfaction was NOT related to the outcome of the case.

Prior to the introduction of mediation the average number of days to the grant or denial of appeal was 448, with another 202 days to opinion. Mediation took 60 days to move from the filing of the petition for review to mediation (some took up to 120 days).

The Use of Mediation to Resolve Workers' Compensation Cases: A Report to the Tenth Appellate District of the Court of Appeals of Ohio

Description
Study of the efficacy of the mediation of mandamus actions in workers' compensation cases.

Method
Cases were randomly assigned to mediation or control groups. Four hundred questionnaires were mailed to lawyers who handled cases that were mediated; 243 were returned.

Sample Size
For time to disposition and settlement rate data, 312 cases were examined of total of 388. These included 198 mediated cases and 152 non-mediated cases. 243 of 400 attorneys responded to questionnaire

Program Variables
One mediator who was an experienced workers' compensation attorney was hired. Mediation was mandatory for cases in the mediation group and was provided free to parties. The program had been in existence less than one year at the time of study.

Full Findings
Mediation did not accelerate the timing of settlement, but increased the settlement rate. The settlement rate was 44% for the mediation group and 24% for the control group.

The median number of days to settlement for mediated cases was 146; for non-mediated cases it was 109 (for settled cases only). For non-settled cases mediation added time to some cases that finish quickly, but had no overall effect on the pace of settlement.

19% of attorneys were very satisfied with the outcome, while 48% were somewhat satisfied. Satisfaction was most highly related to whether the attorney thought opposing counsel was negotiating in good faith.

The Pre-Argument Conference in the Sixth Circuit Court of Appeals

Description
Comparative study examining the impact of mediation on judicial workload and the clarification of issues on appeal.

Method
Random assignment of cases to mediation. Looked at approximately 1500 cases over a 17-month period. Examined conference activities logged by conference attorneys, questionnaire data from surveys of judges and attorneys who participated in conferences, and participant-observer data from a sample of cases.

Sample Size
1016 mediated cases and 509 non-mediated cases

Program Variables
Mandatory for those cases randomly assigned to mediation. Staff attorneys were mediators. 93% of mediations were conducted over the phone. The program was in place three years at the time of study.

Full Findings
57% of mediated cases reached argument or submission; 69% of non-mediated cases did. The mediation program diverted between 6.9% and 16.7% of eligible appeals from the court's argument calendar. Unsettled mediated cases took an average of 12 days longer to move from docketing to submission than non-mediated cases, but taken as a group all cases assigned to mediation took an average of 25 fewer days from filing to disposition. The mediation program terminated more cases at an earlier stage of the appellate process: 23% more mediated cases than non-mediated appeals terminated before the filing of the appellant's brief or joint appendix. 14.5% fewer procedural motions and 21.6% fewer substantive motions were filed for mediated cases. 57.4% of attorneys felt the program resulted in a net savings of time. (Only 8.9% believed it resulted in a net increase in time.)