Utah Court of Appeals - Appellate Mediation Office
Alternative Method for Case Resolution at the Utah Court of Appeals
The Utah Court of Appeals created the Appellate Mediation Office in 1998 to allow parties an alternative method of resolving their disputes. Unlike litigation and arbitration, mediation is not an attempt to judge the merits of the dispute and render a decision. Mediation is an attempt to assist the parties in understanding their interests, assessing their risks, and negotiating a mutually acceptable resolution.
The Appellate Mediation Office, while an official function of the Utah Court of Appeals, operates independently of the court. Because the purpose of mediation is to allow the parties a confidential environment within which to explore the possibilities of settlement, discussions with the Appellate Mediation Office are confidential.
The judges of the Utah Court of Appeals believe that by providing a mediation option attorneys and citizens who find themselves before the court will be better served. Both financial and emotional costs to the parties, as well as costs to taxpayers generally, can be greatly reduced by a successful mediation.
Benefits of Appellate Mediation
- Produces mutually satisfactory solutions
- Faster, cheaper -- more creative
- Assesses -- and may eliminate risks of appeal
- May preserve/heal relationships
- Creates workable solutions
- May resolve related litigation
- Provides neutral forum
- Produces agreements with high rate of compliance
- Decreases fee -- mediator free
Questions and Answers about the Appellate Mediation Office
Why would parties want to settle a case at the appellate level?
Studies indicate greater public satisfaction with mediated solutions. Obtaining a reversal or affirmance from the appellate court involves some risks. Mediation allows the parties an opportunity to examine their interests and needs, assess the risks on appeal, and determine whether they can reach a mutually satisfactory solution. In addition, mediation is generally faster and cheaper than litigation, and the parties can fashion creative solutions. Thus, mediation provides another method of resolving disputes.
Will mediation delay my appeal?
No. The appeal continues to proceed while cases are in mediation. In addition, in cases that are not settled, attorneys surveyed have indicated that mediation assisted them in narrowing issues and fine-tuning legal arguments, thus expediting the briefing preparation process.
How is the mediation conference conducted?
The mediation conference is conducted either in-person or by telephone. The parties, or a person with settlement authority, must be present or available by telephone. Generally, the mediation process involves the following steps: opening statement of mediator, opening statement of parties, private discussion or caucus, options for settlement, negotiation, and agreement. During the mediation conference, the mediator will initially meet with the attorneys and parties to explain the process and identify the legal issues and the interests/needs of each party. The mediator will then meet privately with each party and discuss the strengths and weaknesses of the case, the risks of proceeding with the appeal, and options for settlement. Following these discussions, the participants will review options for resolution and begin negotiating settlement. If an agreement is reached, the mediator will meet with the participants to discuss the details of settlement.
Are my discussions with the mediator confidential?
Yes. Statements and comments made in mediation conferences and related discussions are confidential. They may not be disclosed in arguments, briefs, or otherwise by the Appellate Mediation Office, counsel, or the parties. The Appellate Mediation Office is operationally separate from the Utah Court of Appeals, and all matters before the mediator will be kept confidential to allow for candid discussions that may assist in settling the case.
Is mediation mandatory? Will the mediator pressure parties to settle a case?
The philosophy of the court and the Appellate Mediation Office is that while participation in the first mediation conference is mandatory, settlement is voluntary. A party's position may be thoroughly probed, and the risks associated with proceeding with the appeal may be discussed; but there is no undue pressure on the parties to settle. The mediator's purpose is to facilitate communication between the parties, assist in identifying their interests and needs, and aid in the negotiation process. The mediator will not attempt to prejudge the case, predict the court's decision, or force settlement.
Who is the Appellate Court Mediator?
Chief Appellate Mediator
Preparing for Mediation: A Guide for Lawyers and their Clients*
*This guide is a summary of an article entitled "Attention Attorneys: How to Achieve the Best Results in Mediation" published in the American Arbitration Association's Dispute Resolution Journal. The full text of the article is available by contacting the Appellate Mediation Office.
Preparing for Mediation
Understanding mediation is a necessary part of practicing law today. Because the judicial process and the mediation process are vastly different, mediation preparation differs from litigation preparation. Unlike litigation, in mediation the parties identify the issues, their interests, and their needs in order to determine whether, considering all the risks, they can resolve the dispute in a mutually acceptable manner. Effective preparation for mediation includes the elements listed below.
- Prepare a Direct and Honest Statement of Facts and Issues Attorneys should prepare for the mediation conference by distilling the relevant facts into a concise, direct, and honest statement. Both sides must come equipped with current information that will assist in proposing settlement options. If attorneys and clients view mediation as an opportunity to openly share information and possibly avoid costly discovery, both parties' interests are better served even if the case is not settled.
- Use neutral language
- Exchange information
- Be honest
- Avoid concealing information/issues
- Use a positive tone
- Acknowledge in neutral terms the emotional background
- Concede weaknesses where appropriate
- Attempt to diffuse hostility
- Identify Clients' Interests and Needs Prior to mediation, attorneys should ask clients to identify interests and needs that are motivating the case. By satisfying the underlying interests and needs, parties can often arrive at a mutual resolution. Frequently, parties who have focused primarily on their legal rights and remedies are pleased to shift the focus to the remaining portions of the problem not articulated in legal documents and sometimes not capable of resolution through the judicial system.
- Interests. Interests are items such as fairness, justice, preserving relationships, and establishing legal parameters.
- Needs. Needs are items such as minimizing costs, expediting resolution of the problem, paying pending bills, and terminating the emotional drain.
- Develop a Plan Attorneys should also develop a general plan prior to mediation by examining several items, including:
- Assess key evidence.
- Evaluate strengths and weaknesses. The attorney should analyze the best, worst, and likely case scenario, along with the approximate cost of each scenario.
- Discuss the costs of litigation. The lawyer should determine the client's ability and willingness to fund litigation in light of all risks present. The lawyer should discuss with the client the portion of the lawsuit not set forth in the pleadings.
- Acknowledge and discuss emotional issues. Emotional issues must be acknowledged before clients can begin to rationally address settlement.
- Maintain flexibility. New information may emerge during the mediation process, and attorneys and clients should prepare to be flexible.
- Understand the Mediation Process Attorneys and clients should also be familiar with the mediation process. The mediation process has approximately six distinct stages: opening statement by the mediator; opening statement by counsel and parties; private discussions or caucuses; brainstorming options for settlement; negotiation; and reaching an agreement.
1. Opening Statement of the Mediator
During the opening statement, the mediator introduces the process and explains the basic rules regarding mediation.
- Purpose of mediation
- Role of mediator
- Empowerment of parties
- Listening is important
- Brainstorm creative solutions
- Ground rules-respect, no interrupting
- Use neutral language
- Explanation of the mediation process
2. Opening Statement of the Parties
The opening statement allows each party to present its version of the case.
- Identify players
- Articulate relevant facts
- Outline legal and nonlegal issues
- Use neutral language
- Avoid posturing and adversarial terms
- Allow opportunity for parties to discuss interests and needs
- Remember that other opportunities to communicate information are available later
3. Private Discussion or Caucus
After the mediator has met with both sides in a joint session, the mediator may move the parties into two separate rooms to discuss the case privately. The private discussion will likely involve:
- Emotional venting. The emotional backdrop of the case must often be acknowledged before the parties can begin to solve the problem. Caucusing allows for an open discussion of the emotions in the case.
- Expanded discussion of interests and needs.
- Discussion of strengths, weaknesses and risks in the case. This is an opportunity for attorneys to ensure their clients understand the risks and have realistic expectations. Attorneys often use this process to fully inform clients who have unreasonably high expectations of the case. The mediator will likely discuss the risks of the litigation, including costs, adverse rulings, and personal and financial ramifications.
4. Options for Settlement
After issues are defined and interests of the parties have been determined, the parties will begin to explore options for settlement during caucus. Parties are encouraged to creatively brainstorm multiple options for settling the case.
After the parties have created options, the mediator will take the options to the other side. During the negotiation, the attorney, client and mediator will discuss:
- Negotiation strategy
- Options for settlement
- Terms of agreement
6. Reaching an Agreement
In the event the parties reach an agreement, they will likely gather in one room, or join in another telephone conference to review:
- Terms of the agreement
- Drafting agreement - who, when
- Exchange of final settlement documents, checks, etc.
When the parties are able to reach an agreement, both parties generally feel satisfied and sometimes elated. Often both sides may still feel some discomfort but are pleased with their ability to resolve the dispute. In both instances, they have been empowered to solve their own dispute and have found a compromise that works for both sides. Personal or professional relationships may be restored, the emotional and financial drain of the lawsuit is over, and the participants are able to move forward with their lives.
Chief Appellate Mediator
Ms. Mattsson graduated from the University of Utah with an Honors B.A. in English in 1985 and a J.D. in 1988. She spent a number of years in private practice before joining the Utah Court of Appeals as a staff attorney in 1995. In 2001, Ms. Mattsson was selected as the Chief Appellate Mediator. Ms. Mattsson received mediation training locally and at Pepperdine University. She has had the opportunity to mediate hundreds of cases and strongly believes in the appellate mediation program. Ms. Mattsson sits on several boards and committees, including Utah's Alternative Dispute Resolution Committee, the Utah Council on Conflict Resolution, the Legal Aid Society, and the University of Utah Crimson Club.