This article reports on the recently completed independent evaluation of the New Mexico Court of Appeals' mediation program. The Court began a mandatory mediation program in September 1998. A previous article in The Journal of Appellate Practice and Process explained in detail how and why the program was designed and generally commented on the program's progress. (1)
Overall, the Court has been pleased with the number and percentage of cases that have been resolved and the feedback received from the bar. After two years, however, the Court determined it would be helpful to have an analysis conducted by an independent, outside expert. It believed an objective report would enhance the Court's ability to communicate effectively about the program with judges, the bar, the legislature, and the public. The New Mexico Administrative Office of the Courts sought an assessment of the program and secured a grant from the State Justice Institute to hire an independent evaluator. This article is based in large part on a report developed under that grant. (2)
Improved ways of resolving disputes in the nation's state appellate courts have been perennial topics of conversation among judges, court staff, attorneys, alternative resolution experts, and scholars for the past twenty years. Are there faster, cheaper, and fairer ways to resolve a case than by a court decision based on a review of fully written briefs, oral argument, and a signed, written opinion? One of the leading alternatives is the use of mediation to encourage opposing attorneys and their respective clients to negotiate a voluntary settlement, followed by an agreed-upon dismissal of a case. Descriptions and evaluations of attempts to apply mediation are available in law reviews, journals, and other sources. (3)
The basic premise of these various applications is that early intervention (i.e. prior to briefing) in the form of a settlement conference will stimulate communication among the attorneys and clients that would otherwise not occur. A mediator's presence will enable negotiations to begin and remain focused. Consequently, the participants will be better able to reach agreement on all or most of the unresolved issues. (4)
Previous research has documented that this premise, to a great extent, is valid. Efforts to bring attorneys and the parties together do prompt communication. Mediators are viewed as effective facilitators, and the rate of settlement has indeed increased with the introduction of mediation, at least in some courts. Interestingly, however, one study found that when there is communication and informal negotiation among a control group of attorneys without a settlement conference, the rate of settlement is the same as it is in an experimental group with a settlement conference. (5)
What remains to be determined is the element of early intervention. Is negotiation possible, probable, or frequent if and only if mediation is introduced early in the appellate process, say fifteen to thirty days or fewer after the filing of a notice of appeal? Must mediation be the first intervention by a court? The premises suggest that the answers to these questions are affirmative, because at the appellate level the room for fruitful negotiation is assumed to exist, if at all, only early in the appellate process.
Mediation is considered much more possible at the trial level. Once a case has been appealed, the opportunity for mediation is constrained because appellate attorneys and their clients have developed entrenched positions. More importantly, the adversaries shore up their positions, especially after the basic costs of appellate litigation (i.e., brief writing) have been borne. Hence, settlement efforts in virtually all appellate courts are introduced shortly after the initial step of case filing in accordance with the untested assumption that bargaining prospects dwindle as the appellate process is extended. …