By Justice Evelyn Keyes, First Court of Appeals, Houston  and Angela Spoede, Senior Staff Attorney to Justice Keyes (with special thanks to Chris Prine, Clerk of the First and Fourteenth Courts of Appeals).

Judging from the relatively high number of objections filed in cases that have been ordered to mediation, many practitioners seem to have decided that appellate mediation cannot work for them. For example, out of forty-four cases ordered to mediation by the First Court of Appeals in the 2015-2016 fiscal year, objections were filed in twenty-three of those cases.

However, there can be tremendous benefits to mediation at the appellate level when practitioners know what the process can and cannot do. Consider this a word in favor of mediation in an appropriate case.

The goals of alternative dispute resolution, including mediation, are to (1) increase party participation in, and satisfaction with, the judicial system; (2) to provide an alternate forum for readily accessible, fair, and appropriate means to resolve disputes; (3) to reduce the time and costs of litigation; and (4) to ease the court’s heavy docket. See PRACTICE BEFORE THE COURT: ALTERNATIVE DISPUTE RESOLUTION PROCEDURES, (last visited Aug. 29, 2016).

Our state appellate courts may order mediation as part of the state’s policy “to encourage peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures.” See TEX. CIV. PRAC. & REM. CODE. § 154.002. But mediation at the appellate level may or may not be helpful. Consider this conundrum: Mediation may be particularly appropriate in a family law case where the issues are more personal than legal. But in that case, there will usually be no appeal. And if such a case does reach the appellate courts, it may well be on a legal issue not suitable for mediation—one that requires an appeal. So, recognizing that identification of the “appropriate” case in the appellate mediation context can be tricky, let us consider from a court’s perspective cases in which mediation might be helpful.

In the majority of cases, an appellate court will consider whether to order a case to mediation following the appellant’s filing of the docketing statement, which includes a mediation section. Factors the Court considers in determining whether the case is appropriate for appellate mediation include the parties’ requests regarding mediation, the case’s prior history with attempted alternative dispute resolution, the type of case and issues raised, and the relative complexity of the case, among others. If the court orders the case to mediation, any party may file a written objection within ten days. The Court reviews objections and, if it finds a reasonable basis for the objection, will sustain the objection and withdraw the mediation order.

Compelling reasons for objecting to mediation include the presence of a complicated legal question requiring resolution by the appellate court; previous unsuccessful attempts at mediation; or strong emotional components or power imbalances that could complicate the settlement process. At this point, the parties may have reasons for objection to mediation that are not apparent to the court at the docketing stage. But when mediation works—even in clarifying or reducing the issues presented on appeal—it greatly expedites dispute resolution and saves money.

The court may also order mediation later in the process—such as after briefing has been submitted or even after a case has been heard at oral argument. Parties can also object to mediation at this point, but a court’s referral to mediation at this stage of an appeal is a strong signal for the parties to engage seriously in the mediation process. The classic situation here is when a panel suggests mediation from the bench during oral argument, usually as an indicator that there is a disagreement among the panel or that the panel foresees that no one will be happy with the anticipated legal answer. If the parties have strong substantive reasons not to mediate, this is the time to share them with the court—at oral argument or by requesting permission to file a letter brief stating persuasive reasons for the objection to mediation and seeking rescission of the order.

Regardless of when in the appellate process the parties engage in mediation, the parties must agree on a qualified mediator and notify the court of their selection. After the Clerk of the Court receives the notice, the selected mediator is deemed appointed by the Court. See PRACTICE BEFORE THE COURT: ALTERNATIVE DISPUTE RESOLUTION PROCEDURES, The Legislature has provided general standards for mediators appointed by a court. See TEX. CIV. PRAC. & REM. CODE. § 154.052. Litigants will also want to look for a mediator with experience in appellate, as opposed to trial, mediation and one who is familiar with the applicable area of law.

When most lawyers think of mediation, they think of it as a method of settling disputes prior to conducting a trial and obtaining a judgment on the merits. However, mediation is alive and well in the appellate courts of Texas, and knowing the process for mediation in the state appellate courts can help practitioners reach better results for their clients.