By John S. Grant IV on July 3, 2023
Our firm handles lots of appeals to the Mississippi Supreme Court and Court of Appeals. Often, people with an appeal matter do not realize that their case can still be settled while it is on appeal. That is, in many cases, the parties can still come to an agreement and have that agreement honored by the court, even after an appeal has been filed. This post covers what you need to know about possibly mediating and settling your case while the appeal is pending.
What Is Appellate Mediation?
Appellate mediation is a process where a neutral person, called a mediator, meets with the parties to the appeal and helps them try to settle the case. Importantly, a mediation is not at all like a trial. In a trial, a judge or jury will decide the outcome, and the parties are bound by the decision (unless, of course, it is successfully overturned on appeal). With mediation, the mediator does not decide anything. Instead, the mediator helps the parties try to reach a common ground and agree to a binding settlement. So the parties themselves, not the mediator, will decide whether or not to settle and the specific terms of any settlement.
Mediations are informal, unlike court. Generally, the parties agree on a person to handle the mediation, who is usually a former judge or someone with extensive experience in the subject matter of the case. There are formal trainings for mediators, and it’s always a good idea to get a mediator who has been certified. A list of certified mediators is on the Mississippi Bar’s Mediator Directory. And, in fact, specific to appellate mediations, the Alternative Dispute Resolution Section of the Mississippi Bar has an appellate mediation coordinator who can help select an appellate mediator, if needed.
The parties must also agree on the details of the mediation, such as the time, place, and location. Usually, the mediation is handled at the office of one of the attorneys representing one of the parties participating in the mediation. But, if the parties prefer, a “neutral” location can be used. Generally, I think the location does not matter at all to the outcome of the mediation and whether it is successful.
At mediation, each party and their attorney will be placed in a separate conference room, and the mediator goes back and forth to each side and meets with them separately. The mediator will attempt to have each side propose offers and counteroffers to the other side until a settlement is reached.
If the case settles, it’s a good idea to go ahead and have the attorneys type up a formal settlement agreement and have the parties sign it on site the same day as the mediation – otherwise, one of the parties might get cold feet and attempt to back out. Once a settlement agreement is signed, that settlement is enforceable in court. It can be enforced even if a party tries to back out after the mediation.
After the mediation, there are usually other steps that must be taken to wrap everything up. In certain types of cases, the trial court must approve the settlement. This is usually more of a formality, because most trial courts will be happy to approve a settlement the parties have reached between themselves.
There is also the additional step of having the appeal dismissed by agreement after a settlement is reached.
The biggest benefit of appellate mediation is that it gives the parties certainty and control of the outcome. No matter how strong an appeal may be, parties always have some risk and exposure. With a settlement, you know exactly what you get.
Another benefit is that the appellate-mediation process can result in a stay on the trial court’s judgment. A recent rule approved by the Mississippi Supreme Court, Appellate Procedure Rule 50, says money judgments can be stayed for 90 days while the parties attempt to mediate the case. This means the parties can agree to temporarily forego enforcement of the trial court’s order for 90 days. The new rule also allows the judgment to be stayed without the party appealing being required to post a bond, which can avoid considerable expense. All appellate deadlines can also be stayed by agreement, while the parties are given time to try to resolve their case through settlement.
There are other benefits as well, such as reducing costs and attorney’s fees in the appeal process.
Sometimes another benefit is mediation can significantly shorten the time to final resolution. It generally only takes 1 to 3 months to mediate a case, while an appeal generally takes a year and a half or more.
Often, there is also value in minimizing the emotional toll that continued litigation often takes on the parties.
One con of mediation is that it costs money, as the mediator charges a fee. Though this is an extra cost, if the mediation is successful, it almost always ultimately saves a great deal of money to go through the mediation as opposed to paying attorneys to argue the appeal. Also, usually both sides split the mediator’s fee 50/50, which can help reduce the cost of mediation.
Another potential con is that the result of a mediation is usually more “in the middle” than if the appeal runs its course. Neither party is likely to get everything they want in mediation. If the appeal goes all the way, often one party or the other has a bigger “win” or “loss” than if they had settled. But there are advantages to taking less than your ideal outcome, such as avoiding risk of an unfavorable decision by the appellate court.
So, generally, to decide if the case is worth mediating, each party should weigh what their exposure would be if the case were ruled on by the appellate court. Parties should ask, “what is the appellate court likely to rule?” The best cases to mediate are usually the ones where the outcome is not as predictable. If the outcome is fairly certain, then usually the party with more leverage (as a result of the trial court ruling) has less incentive to mediate.
A settlement conference generally just involves the attorneys for each side and the parties. No mediator will participate in the process.
It’s quite possible to settle a case on appeal without a mediator. It happens all the time. However, from my experience, settling an appeal with no mediator is usually more challenging. There is a great benefit to having a neutral mediator come in and help each party see the strengths and weaknesses of their case, possible and likely outcomes, and the exposure of each party.
With a mediator, both sides can trust the mediator does not have “a side.” The mediator simply wants the case to settle on fair terms for both sides. The parties should be able to trust that the mediator does not have an ulterior motive and is not biased against them.
With a settlement conference, the biggest obstacle to settlement is usually hurt feelings of each side towards the other, which has the participants’ guards up. Each side is “dug in,” so to speak, thinks they are right, or dislikes the other party (to put it mildly). The tone is usually greatly more civil when a neutral third party comes in and has a calm discussion with each side about the case. The neutral mediator is uniquely suited to prevent the settlement from blowing up or productive communications from breaking down. The neutral person can often present settlement offers to each side with better receptiveness than opposing attorneys can in a settlement conference.
Certain types of cases are not eligible to be mediated in Mississippi. No criminal cases are eligible. Fortunately, though, most civil cases are eligible. And only a handful of civil cases are not eligible. These ineligible cases involve one of the following: utility rates, annexations, bond issues, election contests, the Mississippi Public Service Commission, post-conviction relief, or a ruling that a statute is unconstitutional. The good news is most civil cases do not fall in these ineligible categories. For example, mediation would be an option in divorces, civil judgments (including civil jury verdicts), will contests, medical-malpractice cases, car wrecks, contract disputes, premises-liability cases, products-liability cases, and numerous others.
That being said, some types of cases are far better for mediation than others. Usually the best cases to mediate are ones where each side is not left with an “all or nothing” outcome. For example, child custody cases are not usually amenable to mediation. That is because both sides want custody of their child, and they are unwilling to bend. However, even those cases are not impossible to mediate—because, for example, the parties could agree on joint custody or an alternative visitation arrangement and still settle.
The best way to determine if a case is right for mediation is to discuss mediation as a strategy with your appellate attorney.
Yes. We have filed a number of appeals that have ultimately settled through mediation. In fact, I often encourage clients to think about mediation as an option if it makes sense for their case. Our firm also has an experienced mediator, John S. Grant III, who handles appellate mediations. He was a chancery judge for 6 consecutive 4-year terms, which makes him uniquely qualified to handle mediations in a wide range of matters, including appellate mediations. Of course, if our firm represents one of the parties in an appeal, Judge Grant could not be the mediator due to a conflict of interest.
We are always looking to help people on appeals, by pursuing whatever strategy makes sense for them, whether that be mediation or arguing an appeal. If this is you, please feel free to call us and discuss your appeal matter.