Last week, I spoke to the Austin Bar Association ADR Section about mediating cases on appeal. In my talk, I explored the differences in perspective between pre-trial mediation, in which most everything is in flux, and post-trial or appellate mediation, where a party has usually won or lost and the variables have shifted toward certainty. From there, I discussed the potential advantages of using an “evaluative” mediator knowledgeable about the appellate courts, the law, and the evidence.
Most mediators use a facilitative approach to help the parties arrive at their own proposals and potential solutions. The evaluative approach allows a mediator to more directly assess the relative merits of each side’s case and propose compromise based on the law and predicted outcomes. If used properly, I believe the evaluative approach can help parties resolve a dispute that otherwise could take years to work its way through the appellate system.
Appellate mediation is a service I’m now offering in my practice. If you have a case headed for appeal and would like to explore working with me as a mediator, please feel free to reach out to me directly.