The Woes of Court-Mandated Appellate Mediation: Will the Real Family Law Appellate Mediation Program Please Stand Up?
I was at a continuing legal education luncheon this week when I was approached by a colleague who was exhorting the unbelievable success of the Minnesota Court of Appeals Family Law Appellate Mediation Pilot Program. She explained how some of the “well-known” and “best respected” family law attorneys in town were claiming that the program had a ninety percent success rate. She said that even some of the “good family law appellate lawyers” were resolving cases with the help of a court-appointed mediator. Appeals, it would seem, at least in the family law context, will soon be a thing of the past, or so the program’s proponents would have us believe.
For the program’s advocates, any success is a tremendous success. How could a program that encourages settlement and decreases the cost of litigation be bad? Well, it could be bad if it promotes settlement over the interests of justice. It could be bad if it represents yet another barrier to entry to the legal system for middle class families, and it could be bad if it increases the cost of litigation, while conferring only marginal benefits on employees of the judicial branch – by decreasing their caseload.
Make no mistake, I am strongly in favor of voluntary settlement programs that increase settlement rates and decrease the cancerous nature of family law proceedings. As a trial attorney, I know all too well the real world damage done to families engaged in prolonged legal battles. But, the purpose of alternative dispute resolution is to prevent trial. Its benefit is in providing litigants with a measure of control over what is an otherwise uncontrollable situation. It increases litigant satisfaction by having the parties “buy-in” to the terms of the settlement agreement. All of these goals are legitimate. And all of them are prejudgment in scope. The landscape looks very, very different after the Court issues its ruling.
Why? Well, for one thing, the case has been decided. We have an answer. We know the outcome. In many counties, getting a case decided on the merits is not an easy thing to do. Judges often resist setting family law cases for trial. Some Judges set, reset, and reset again Pretrial Conferences in an effort to avoid contested litigation. Other times, Judges order additional ADR even after the Pretrial Conferences in order to avoid trial. Getting a decision can cost litigants lots of money.
What’s more, once we have a decision, what incentive does the prevailing party have to settle the case, apart from the opposing party’s blackmail-like threat of additional attorney fees? The trial judge, who heard all the evidence and weighed the creditability of all the witnesses, has decided the case in their favor. Are we to simply dismiss the trial judge’s ruling as unfounded or untrustworthy? If so, this undercuts the very essence of our system of appellate review – deference to decisions of the trial court. Or, alternatively, are we to conclude that the court-appointed mediator, who has just been assigned to the file, has a better grasp on the facts and the law than the trial judge? How does this promote a just and equitable outcome?
These concerns notwithstanding, the program’s proponents continue to beat the mediation drum. It continues to beat despite the fact that the “success” rate touted by the program’s advocates is much too high – during a recent on-line CLE webcast one of the program’s creators noted that recent data actually shows an approximately fifty percent (50%) success rate for the thirty cases completed. The mediation drum continues to beat despite the fact that abandoning appeals does not necessarily mean that the program is working, at least not in terms of increasing litigant satisfaction.
What would be really interesting to know, and what I hope the study’s authors will tell us, is the percentage of “resolved” cases that involved pro se appellants. How many of the alleged “success stories” weren’t really settled as much as they were dismissed? A sizeable number of family court appeals are dismissed or otherwise summarily disposed of. How many of the “success stories” involved pro se appellants just giving-up? Does that level of “success” justify the financial burden placed on all other litigants by forcing them into the program?
Maybe the Program’s creators will answer some these questions for us. Then again, maybe they won’t.
For the program’s advocates, any success is a tremendous success. How could a program that encourages settlement and decreases the cost of litigation be bad? Well, it could be bad if it promotes settlement over the interests of justice. It could be bad if it represents yet another barrier to entry to the legal system for middle class families, and it could be bad if it increases the cost of litigation, while conferring only marginal benefits on employees of the judicial branch – by decreasing their caseload.
Make no mistake, I am strongly in favor of voluntary settlement programs that increase settlement rates and decrease the cancerous nature of family law proceedings. As a trial attorney, I know all too well the real world damage done to families engaged in prolonged legal battles. But, the purpose of alternative dispute resolution is to prevent trial. Its benefit is in providing litigants with a measure of control over what is an otherwise uncontrollable situation. It increases litigant satisfaction by having the parties “buy-in” to the terms of the settlement agreement. All of these goals are legitimate. And all of them are prejudgment in scope. The landscape looks very, very different after the Court issues its ruling.
Why? Well, for one thing, the case has been decided. We have an answer. We know the outcome. In many counties, getting a case decided on the merits is not an easy thing to do. Judges often resist setting family law cases for trial. Some Judges set, reset, and reset again Pretrial Conferences in an effort to avoid contested litigation. Other times, Judges order additional ADR even after the Pretrial Conferences in order to avoid trial. Getting a decision can cost litigants lots of money.
What’s more, once we have a decision, what incentive does the prevailing party have to settle the case, apart from the opposing party’s blackmail-like threat of additional attorney fees? The trial judge, who heard all the evidence and weighed the creditability of all the witnesses, has decided the case in their favor. Are we to simply dismiss the trial judge’s ruling as unfounded or untrustworthy? If so, this undercuts the very essence of our system of appellate review – deference to decisions of the trial court. Or, alternatively, are we to conclude that the court-appointed mediator, who has just been assigned to the file, has a better grasp on the facts and the law than the trial judge? How does this promote a just and equitable outcome?
These concerns notwithstanding, the program’s proponents continue to beat the mediation drum. It continues to beat despite the fact that the “success” rate touted by the program’s advocates is much too high – during a recent on-line CLE webcast one of the program’s creators noted that recent data actually shows an approximately fifty percent (50%) success rate for the thirty cases completed. The mediation drum continues to beat despite the fact that abandoning appeals does not necessarily mean that the program is working, at least not in terms of increasing litigant satisfaction.
What would be really interesting to know, and what I hope the study’s authors will tell us, is the percentage of “resolved” cases that involved pro se appellants. How many of the alleged “success stories” weren’t really settled as much as they were dismissed? A sizeable number of family court appeals are dismissed or otherwise summarily disposed of. How many of the “success stories” involved pro se appellants just giving-up? Does that level of “success” justify the financial burden placed on all other litigants by forcing them into the program?
Maybe the Program’s creators will answer some these questions for us. Then again, maybe they won’t.
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