October 2001

Better Late than Never: Settlement at the Federal Court of Appeals - Part Two 

by Mori Irvine

[Part One]

Becoming an Effective Appellate Advocate in Mediation

Lawyers must take responsibility to make mediation work. This means they must bring the same creativity, energy and dedication to mediation that they bring to their other appellate duties. The successful mediation starts with a lawyer who is prepared and has the correct attitude. Both parties must enter the process with the intention of trying to resolve the problem and with the belief that settlement is possible. Mediation works because the parties make it work. It is a mechanism, not a remedy.

As the attorney better understands mediation, he can modify his negotiation strategy to maximize the use of the process and the mediator. For example, because mediation is a settlement tool and not a means to an end, the attorney must take the opportunity to educate the opposition about the merits of the case. The more the attorney can convey to the other side the merit of his client's position, the more the other side will want to settle the matter. Lawyers can assist their clients in increasing the potential of the mediation process by following the "Ten Commandments of Effective Mediation."2 

Commandment One: Be Professional

Courtesy, professionalism, and a willingness to work with the other side will reap substantial benefits in reaching a settlement that satisfies the most important interests of the client. The participants should approach the process optimistically and with a willingness to listen and learn. The attorney and the client should review the case and their mediation plan shortly before the mediation. The lawyer should explain to the client his role, the attorney's role, and the mediator's role in the process.3 

The attorney and his client should always be respectful, attentive and courteous in the mediation. The participants should be on time for the mediation; tardiness sets a poor stage for settlement discussion because it sends the message to the waiting participants that they are not as important as the latecomers.

Upon arrival, the lawyer should introduce himself and his clients to all the other participants. The attorneys should identify their respective positions so everyone knows who is playing which role during the mediation. The attorney must have present at the mediation the client with adequate authority to settle.4 

During the joint session, the attorney and client should listen carefully to the mediator and to the opposing counsel during his opening remarks.5 This is not the time for the attorney to flip through her file, look at her calendar, or read the newspaper. In short, the Golden Rule applies in mediation.6 Mediation is "a process governed by mutual respect, not by… rudeness which too often characterizes adversarial law practice."7 

Commandment Two: Use Temperate Language8 

A lawyer should never insult, threaten, or make personal attacks. The use of pejoratives, such as fraud, liar or malingerer, attacks the integrity of the other side. As a result, they will not trust the lawyer (or his client), and without trust, there can be no settlement. In all the years I have mediated cases, I have never seen a lawyer purposely insult his opponent or his opponent's client and still persuade the other side to enter into a favorable settlement.

Personal attacks kill a mediation because the decision-maker in mediation is not the mediator; he is the adversary on the other side. The opponent is the one who must be persuaded. The correct use of language — a lawyer's stock in trade — is crucial to the success of any mediation. That means the use of "I" statements instead of "you" statements. "I" statements make a point without hurting;9 "you" statements are inflammatory;10 "why" statements antagonize.11 To paraphrase Abraham Lincoln, the lawyer defeats his enemy not by attacking, but by making him his friend.

Everything a lawyer says in a joint session should be designed to create a contextual shift in the mind of the opponent. The goal is for the opponent to see that the lawyer and his client are reasonable and have valid reasons for their position. The lawyer wants the other side to really hear and understand what they are being told. To start the shifting process, the lawyer needs to tell them something new. The person whose expectations must be met to settle the case is sitting across the table. The lawyer must work to shift the opponent's evaluation closer to his, and this is done most effectively by using language that draws — not repels. The level of client attentiveness is extremely high in mediation. Clients are listening very carefully. The attorney should give them new information, and use language to move them toward the attorney's position rather than push them away from it.

Temperate language alone, however, will not persuade the other side to settle. To successfully draw the other side to a position, the lawyer must listen to him with the kind of attention that makes the other person feel not only heard, but also seen. To do this, the attorney must engage in "active listening."12 

Active listening is a process of hearing what the speaker is saying, understanding it, and responding with a statement that reflects and mirrors what the speaker has said.13 "[Mediations] usually begin as conflict situations and, as such, generate feelings of mistrust, fear and anger that are counterproductive to establishing a cooperative or problem-solving bargaining relationship."14 Interpersonal techniques, such as active listening, facilitate cooperation because the other side believes the lawyer understands his concerns. An attorney can develop this rapport with the other side without "giving up" anything on the merits. Therefore, active listening can be regarded as "the cheapest possible concession."15 

An attorney who is an active listener, especially with her own client, will also take advantage of the opportunity to learn new things. Even on appeal, cases are not static. Everything continues to evolve: The law changes, circumstances change, the decision-makers change, new case law comes down. All these things can affect the settlement posture of the case.

Importantly, by carefully listening, the lawyer can learn how the client feels about the case.16 Feelings are facts, and the attentive attorney will learn which feelings are at work in the particular case, giving her an opportunity to effectively deal with those feelings rather than letting them go unexpressed and unresolved. Unattended feelings have derailed resolution in many cases.17 For example, many clients believe, especially when the litigation at the trial level ended in a summary judgment or other "premature" end, that they are entitled to their day in court. An attorney who is attentive to her client's feelings will be more able to help the client become psychologically ready to settle the case and put the matter behind him.

Listening carefully also allows the attorney to ferret out the interests of the parties instead of focusing only on their positions.18 This is crucial in permitting the lawyer to understand and contrast the parties' interests and positions. They may be different, and a solution may be available that will satisfy the interests of both sides.19 

The cardinal rule of mediation is to "seek first to understand, only then to be understood."20 That requires the attorney to listen carefully.

The lawyer's preparation goes beyond knowing the circuit's rule that governs the mediation session.21 The attorney must be able to identify and articulate the issues and common interests in the case. To be able to do this, the attorney and client must be prepared. An attorney must never go to a mediation and "wing it." The deal that is made at mediation is final; there is no alternative after the settlement is completed.

An important step in the attorney's and client's preparation for mediation is an exploration into what is really driving the client and what he wants to accomplish with the appeal. This means the client must think seriously about the consequences of going forward. He can do that only if the attorney has given him a realistic analysis of the benefits and risks on appeal. "The dialogue between lawyers and clients must take into account practical, ethical, and moral considerations."22 The lawyer must give the client a realistic analysis of fairness considerations and make the client aware that surprises occur during the course of the appeal. For example, new case law may come down during its pendency that completely obliterates or otherwise weakens the client's position.

To organize the client's concerns and assess his expectations, the lawyer and the client should explore the client's Best Alternative to a Negotiated Agreement (BATNA)23 and Worst Alternative to a Negotiated Agreement (WATNA)24 before the mediation. No one is prepared to commence a negotiation and make intelligent settlement decisions until she truly understands her BATNA and is able to express it clearly. A carefully considered BATNA provides a useful measuring tool for the various offers on the table; it will drive the client toward an offer that is better than the BATNA and away from an offer that is not. In addition, if the lawyer and client become concerned that the WATNA is highly likely,25 an even slightly better offer will seem more attractive.

To assess the client's BATNA at the appellate level, the attorney must do the math for the client. He must articulate for him what the appeal will really cost in time, money and stress. If a plaintiff is successful in overturning on appeal a summary judgment granted to the defendant, that is not the same thing as "winning the case." The client must be made aware that a victory at the court of appeals may sometimes mean just more litigation, more work, more expense and more frustration. In addition, the attorney must keep in mind each side's tolerance for risk and willingness to "roll the dice." Finally, the lawyer must be candid and honest in assessing alternatives. When one side says the cost of defending the appeal is $1,000, and the other side says they will accept the $80,000 their opponent would spend on the appeal, probably neither side is being realistic in assessing the financial aspect of their BATNA.

It is not enough that the lawyer knows the interests that drive his own client. It is equally important that the attorney be fully prepared to acknowledge the other party's interests, perspectives and feelings as well. That means that the attorney must think carefully about the opponent's BATNA. Doing so will allow the attorney to better identify common interests between the parties. If there are no common interests, many parties do share an interest in getting on with their lives, putting the conflict behind them, saving the cost of appeal, resolving the matter in a way that is satisfactory to all, and feeling respected. Identifying the common interests is more than an academic exercise. With common interests comes motivation, with motivation comes concessions and solutions, with concessions and solutions comes settlement.

Mediation is a rare opportunity to have the opponent's decision-maker give settlement talks his undivided attention. Two things — the Confidential Mediation Statement and the lawyer's opening remarks — are the foundation of the lawyer's presentation and, therefore, should be the focus of her preparation. They require that the attorney analyze her client's problem, consider the possible solutions, and devise a strategy for persuading her opponent to settle on favorable terms. Done well, these items show the other mediation participants that the lawyer has complete mastery over the case, has carefully considered the risks and benefits of the appeal, has weighed the alternatives, and has devised possible resolutions to the conflict.

• Confidential Mediation Statement

The Circuit Mediation Office recommends that lead counsel submit a "Confidential Mediation Statement" before the mediation.²⁶ The statement does not become part of the court file, nor is it shared with the other side.27 The statement should be in letter form, addressed to the mediator, and should provide the information necessary for the mediator to assist the parties in seeking settlement.

At a minimum, the statement should include the following elements: a brief recitation of the circumstances that gave rise to the litigation, the present posture of the case including any matters pending in the lower court or in related litigation, and recent developments that may impact the resolution of the case. It is helpful to include the history of efforts to settle the case, including prior offers or demands, a summary of the parties' legal positions, and a candid assessment of their respective strengths and weaknesses.

The mediator needs to know which individuals and counsel should be directly involved in the settlement discussions, and needs to have a description of any sensitive issues that may not be apparent from the court records but will influence the settlement negotiations. It is particularly helpful for the mediator to know the nature and extent of the relationship between the parties and their counsel.28 The attorney should add any suggested approaches for the mediator to take in an attempt to settle the case,29 as well as any suggestions for creative solutions and a priority list of the client's interests.

It is not helpful to send pleadings instead of a candid, narrative mediation statement. Pleadings do not tell the mediator much about the problem that must be solved to settle the case.30 They do not contain the essential interests of the client, nor are they candid assessments of the case. Likewise, statements that are mere rants or generalized adversarial posturing are also unhelpful.

The Confidential Mediation Statement is one of the most important tools that the mediator has with which to assist the parties in reaching settlement.31 I am constantly surprised to see how few attorneys take advantage of the chance to submit one.

• Opening Remarks

There are two means of persuading the opposition in a mediation. The first is direct persuasion in the joint session through the lawyer and client's presentation. The second is indirect persuasion through the mediator by arming her with information during the caucus that she will present to the other side during succeeding caucuses. The objectives32 of the opening remarks are to build rapport,33 influence expectations,34 and set a cooperative and reasonable tone.35 

In the joint session, the attorney should make a short presentation to the mediator and the other side. He should discuss the facts, the record, the law and the practical points. This concise presentation should include a discussion of the issues on appeal, the best evidence in the record, the most favorable applicable law, and the practical advantages to the other side of settling.

This presentation can include visual aids if they would aid in the mediator's and the opponent's understanding of the case and the client's interests. The attorney should consider softening the adversarial tone of his arguments by being openly empathetic to the other party, by expressing an understanding of the perceived plight of the other side. A good, empathic opening by a well-rehearsed and skillful lawyer directed at the other side, rather than exclusively to the mediator, can set the stage for a good settlement.

A good opening avoids discussing money,36 never sets a "bottom line," and avoids posturing. Instead, it attacks the problem to be solved, not the people involved.37 The successful lawyer uses language to draw the other side to his evaluation of the case and to his suggestions for settlement.

Just as a strong and empathetic opening can move the case toward a favorable settlement, some things will doom the case to impasse, including arrogance; hostility; abusive tactics; an emotional "jury" speech; or a conclusory, generalized pitch that does not focus specifically on key points of the case.

The time expended in preparing for these remarks is important for another reason. During mediation, just as in trial, the clients are constantly evaluating the lawyers and comparing them. The better-prepared lawyer will shine in comparison to his less-prepared colleague who is "winging" the mediation. This means the unprepared attorney's client will develop doubts about the strength of his case and will more readily compromise.

Credibility requires equal parts honesty and knowledge. The lawyer must be prepared on both fronts. The lawyer's goal in mediation is not merely to argue the merits of the case, but to overcome the inherent distrust of the adversary and to maximize the concept that a dispute is a problem to be solved together.38 But a case settles only when each side appreciates the merit of the other side's case. The more each side appreciates the opponent's merit, the more likely the case will settle. This means the lawyer must be prepared to articulate the strengths and weaknesses of his case. He should discuss the weaknesses openly and candidly, and describe how he will handle them and minimize their impact. Acknowledging these vulnerabilities and analyzing how they impact the case will build credibility and trust in both the other attorney and the mediator.

One of the roles of a mediator is to ask probing questions about the case. The lawyer's role is to answer these difficult questions. The attorney who is thoroughly prepared and has carefully thought through the potential pitfalls of the case will build credibility with the mediator and make the lawyer look good to his client. Be honest and forthright with the mediator and give an honest assessment of the case.

In addition to thinking about his own case, the lawyer should spend time analyzing how his opponent might overcome his weaknesses and how his case's strengths can be minimized. A fair resolution requires constant re-evaluation and compromise.

Mediation is a rare opportunity to be creative in solving the client's problem. Remember that the appeal started out as a problem the client brought to the lawyer to solve. The trial lawyer restructured the problem into a lawsuit. Mediation works to deconstruct the lawsuit back into a problem, and then strives to solve the problem. Mediation "captures the human element which is so often missing when lawyers do most of the talking and translate client stories into legal context."39  That means the lawyer must be concerned, creative, and willing to look "outside the box" to achieve a satisfactory result. Before the mediation, the client and lawyer should explore various options for resolution. By "brainstorming" about each party's interest (what he wants and why), the participants can avoid getting caught in the rut of looking only at the legal positions and the asserted legal rights.

This type of thinking takes creativity and flexibility. Creative business alternatives and options are the most fertile areas for these types of solutions. This is particularly true where the parties want or must have a continuing relationship. In searching for business alternatives, concessions should be considered and evaluated. Each side probably values and prioritizes some items differently. This allows the parties to trade concessions that are more valuable to the receiver than the giver.40 This type of exchange begets settlements.

Before mediation begins, the client should prioritize his options. Even so, the client must stay flexible, and focus on accomplishing his long-term goals. In the mediation, neither side should hesitate to start the settlement discussion. Both sides should be prepared to do "the dance of negotiation."41 

If possible, search for independent, objective benchmark standards for your disputed issues.42 In a property-value dispute, look at what sales values of comparable properties have been. In employment discrimination cases, comparable verdicts can serve as the objective basis as can the criteria set out in the statute.43 The object is to link the settlement proposal to something solid rather than the attorney's "gut feeling" or the client's wish list. This type of objective data is difficult to acquire during the mediation. This means the lawyer must make this part of the premediation preparation.

Even with prior preparation, the lawyer and the client must be prepared for shifting positions during the course of the mediation. The client must be ready and willing to re-evaluate his settlement proposal as new information comes to light. As this additional information becomes available, the lawyer and client will continually evaluate and assess if the client is better off with a mediated agreement or with the appeal.44 

During the course of the mediation, it is important to avoid "backtracking" from the last settlement proposal before mediation. In appellate mediation, this is relatively easy because there has usually been a dispositive decision since the last settlement talks. If the settlement posture must be changed, however, it should be linked to some factors that have changed in the interim that justify the shift. These factors must be clearly articulated to the other side. An unexplained change in settlement posture will affect the opponent's perception of good faith, and the attorney who shifts the prior settlement offer should be prepared for the other side to respond to the change by also backtracking from their prior settlement offer.45 

New settlement proposals should not be disclosed in the joint session, but should be held until after the attorney meets privately with the mediator.

Success in mediation depends on each side making a decision the other party wants. Both the lawyer and the client should work hard to make the choice to settle as painless as possible for their adversary.46 Everyone is motivated by self-interest. If a proposed settlement satisfies the opponent's interests, it is easy for the opponent to agree to the terms. Therefore, seeking to satisfy the other side's interests will often work to satisfy the lawyer's own client's interests.

Once a settlement has been reached, the work is not over. In memorializing the terms of the agreement, there are some simple rules that should be observed. Now is not a time for the attorney to acknowledge that he had no chance of prevailing on appeal. The client and lawyer should not gloat or brag about how happy they are about the terms of the settlement. They should not laugh or joke, especially if hard feelings were present in the case, or if the opposing participants are not pleased with the outcome.

As the attorney and client enter mediation, even at the appellate level, they must both keep in mind that "a dispute is a problem to be solved together, not a combat to be won."47 Mediation has the "capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another."48 

The mediator plays many important roles in helping the parties come to a resolution. First, the mediator is there to help the parties establish a constructive setting for negotiation. Second, the mediator helps the parties examine and clarify their interests, keeping them focused on what is important to them in resolving the dispute, not just on their stated positions. Third, the mediator helps deflate unreasonable claims and helps the parties develop practical goals and settlement terms with which they can be satisfied. The mediator does this by seeking common ground for discussion, keeping the negotiation going, and articulating possible grounds for agreement.

But no matter how skilled the mediator, the mediation is only as good as the parties and attorneys let it be. The clients must be prepared to put the dispute behind them, and the lawyers must be well-prepared to help their clients solve the problem.

For those willing to put in the effort, this article provides some guideposts for mediating in the federal courts of appeals.49 It is worth the effort to make that process more productive. Mediation is the ultimate contact sport. It takes energy, skill, timing and patience. The end result is worthwhile. Mediation settlements result in higher client satisfaction, better client relationships, lower cost, less delay, and higher compliance with the settlement terms. The mediator is only part of the solution. Attorneys are equally important, for they help guide their clients toward responsible decision-making in mediation.50 To accomplish this, the lawyer must learn to be a problem-solver and a peacemaker for the client, as well as his sword and his shield.51 

Copyright © 1999 by Mori Irvine. The views expressed in the article are solely those of the author and do not reflect the views of the U.S. Court of Appeals, the 11th Judicial Circuit, the chief circuit mediator or the Kinnard Mediation Center, formerly known as the Circuit Mediation Office.

Reprinted by permission of The Journal of Appellate Practice and Process, University of Arkansas at Little Rock.

NOTES

1. Over the years I have had the good fortune to learn a great deal from my colleagues about this subject. They have been extraordinarily generous with their ideas, insights and materials. The final distillation of these ideas will reflect much of what I have learned from them. As their materials have been completely assimilated into my thinking, individual citation is no longer possible. Nonetheless, I want to credit those whose impact has been the greatest: Professor Lela Love's presentation on the panel "Bringing Out the Best in (and Managing the Worst of) Lawyers During the Mediation Process" at the 26th Annual International SPIDR Conference conducted on October 17, 1998 in Portland, Oregon; Charles F. Guittard, Marsha L. Merrill, Broadus A. Spivey, J. Ross Hostetter, Joe D. Milner Jr. and Tom Arnold, and their work on the program conducted by the state bar of Texas titled "How to Use Mediators to Get a Fair Settlement for Your Client," conducted on September 18, 1992.

2. Professor Lela Love's presentation of "Call the Law" while on the panel "Bringing Out the Best in (and Managing the Worst of) Lawyers During the Mediation Process" at the 26th Annual International SPIDR Conference conducted on October 17, 1998 in Portland, Oregon, is the foundation for what follows.

3. That means the attorney must understand mediation himself. That requires self-education on the lawyer's part.

4. See Fed. R. App. P. 33 ("Before a settlement conference, the attorneys must consult with their clients and obtain as much authority as feasible to settle the case.").

5. In one well-known study it was found that when people are listened to, their blood pressure goes down. Steven Keeva, Beyond Words, A.B.A.J., Jan. 1999, at 61 (citing James J. Lynch, The Language of the Heart: The Body's Response to Human Dialogue).

6. "So in everything, do to others what you would have them do to you." Matthew 7:12 (Family Worship Bible).

7. Nolan-Haley, supra note 48, at 1371 (footnote omitted).

8. I credit Tom Arnold of Texas for many of these observations.

9. "I felt hurt when I heard what you said about how women should not be firefighters" makes the point about how the client felt about what her opposing counsel said.

10. "You said women are too weak to be firefighters" puts the other side on the defensive. When someone is defensive, he or she stops hearing the speaker and is busy formulating a response.

11. "Why do you always denigrate women?" can lead nowhere productive.

12. Donald G. Gifford, Legal Negotiation 89-90 (1989).

13. Id. at 90.

14. Id. at 89-90.

15. Id. at 90 (footnote omitted).

16. At this point, many readers are saying, "So what, I don't care how anyone feels about this case, the law is the only important thing that matters." Not so. Look at any futile litigation that goes on like the case of Jarndyce and Jarndyce in Bleak House. More is at play in a lawsuit than just a judicial interpretation of the law. "At the present moment there is a suit before the court which was commenced nearly twenty years ago, in which from thirty to forty counsel have been known to appear at one time, in which cost have been incurred to the amount of seventy thousand pounds, which is a friendly suit, and which is (I am assured) no nearer to its termination now than when it was begun. There is another well-known suit in Chancery, not yet decided, which was commenced before the close of the last century and in which more than double the amount of seventy thousand pounds has been swallowed up in costs." Charles Dickens, Bleak House viii (Signet Classic 1964) (1853) (emphasis in original). Put another way, the lawyer should ask himself, "Am I paying enough attention to the people problem?" Roger Fisher & William Ury, Getting to Yes 19 (Bruce Patton ed., 2d ed. 1991).

17. Mediators learn early that they must allow the parties to "vent," and failure to do so can create a major roadblock to settlement later. Listen, and if you hear a party resisting settlement because of "principle," then he has probably not been carefully listened to, and his feelings have not been taken into account.

18. Fisher & Ury, supra note 64, at 40.

19. The classic example is the two businesses fighting over an orange crop. Each claims to own it. The position of each party is that it is entitled to full possession of the crop. The interests are different. One company wants the juice of the crop to make frozen orange juice. The other company wants the orange peels to make marmalade. Both companies' interests can be satisfied without ever deciding the legal issue of title. If the lawyers focused exclusively on the parties' positions, this solution would not be possible.

20. From a prayer attributed to St. Francis of Assisi.

21. See generally, 11th Cir. R. 33-1 Circuit Mediation Office. Knowing the rules is extremely important, and should not be neglected.

22. Nolan-Haley, supra note 48, at 1388.

23. Fisher & Ury, supra note 64, at 99.

24. The flip side.

25. At the 11th Circuit Court of Appeals, only 17 percent of civil cases will be reversed on appeal. That means that the appellant will lose 83 percent of the time.

26. 11th Cir. R. 33-1(d).

27. Id.

28. If the parties have never spoken, and the lawyers communicate only by fax, the mediator needs to know this.

29. What is the problem to be solved? What should be the sequence of issues addressed? What are the necessary terms in any settlement reached?

30. On a more practical note, why send the same brief that was unsuccessful in persuading the judge in the trial court?

31. There is an important caveat in using a Confidential Mediation Statement. In at least one jurisdiction, a lawyer was admonished by his bar association for being too candid in his confidential statement to the mediator. The bar found that the lawyer had violated Rule of Professional Conduct 1.6 by revealing client confidences without permission. Disciplinary Notices, Wash. St. Bar News, May 1999, at 53. Clearly, a lawyer must be sensitive to his ethical obligations, even when engaged in mediation.

32. I have Charles Guittard, Attorney's Opening Statement in Mediation, to thank for these observations (unpublished work on file with author).

33. Did the attorney establish personal credibility? Did the attorney affirm his respect for his opponents? Did the attorney use active listening techniques? Id.

34. Did the attorney state the client's perspective in understandable terms and manner? Did the attorney use effective presentation techniques? Did the attorney create the appearance of significant strength or uncertainty? Did the attorney address the opponent's needs and alternatives? Id.

35. Did the attorney project willingness to explore settlement? Did the attorney emphasize that if a settlement agreement is reached, it must be superior to the client's appeal options? Did the attorney emphasize that if a settlement agreement is reached it must be fair to the client? Id.

36. Money is not warm and cuddly. The lawyer is building rapport at this point. Money discussions should be left for later.

37. Fisher & Ury, supra note 64, at 17.

38. I credit Tom Arnold of Texas for this expression.

39. Nolan-Haley, supra note 48, at 1375.

40. This is called "logrolling." See Gifford, supra note 60, at 32 (identifying logrolling agreements as those "in which the parties trade concessions on different issues on which they place differing priorities, so that both parties are more satisfied than if they merely conceded equivalent amounts on each issue"); Fisher & Ury, supra note 64, at 72-74.

41. If the other side does not have to work for a resolution, he will never believe that he could not have gotten more. A somewhat challenging road to settlement yields a greater sense of satisfaction with the result. However, I am not suggesting the participants turn the mediation into a death march to resolution.

42. Fisher & Ury, supra note 64, at 81.

43. See, e.g., Title VII, Civil Rights Act of 1964, 42 U.S.C. § 2000(e).

44. That is why it is so important to consider and develop a "Best Alternative to a Negotiated Agreement." Fisher & Ury, supra note 64, at 99.

45. I am consistently surprised to see parties increase their demands after losing at the trial court. The concept of sunk costs seems alien to them. This approach toward settlement makes resolution much more difficult.

46. Fisher & Ury, supra note 64, at 76.

47. I credit Tom Arnold of Texas for this expression.

48. Lon L. Fuller, Mediation — Its Forms and Functions, 44 S. Cal. L. Rev. 305, 325 (1971).

49. Anyone who appeals federal civil cases will probably find himself involved in one of the circuit mediation programs. To learn more about them, the reader can refer to Robert J. Niemic, Mediation and Conference Programs in the Federal Courts of Appeals: A Sourcebook for Judges and Lawyers (1997). This source book is a reference guide on mediation and conference programs in the federal courts of appeals. This publication was undertaken by the Federal Judicial Center in furtherance of the center's statutory mission to conduct and stimulate research and development for the improvement of judicial administration.

The federal courts of appeals are not alone in pursuing appellate mediation. State courts of appeals are experimenting as well. See Richard Birke, Bargaining in the High Courts: Settlements and the Oregon Court of Appeals, 31 Willamette L. Rev. 569 (1995); Roger A. Hanson, An Assessment of Florida's Fourth

District Court of Appeal's Settlement Conference Program, 18 Fla. St. U. L. Rev. 177 (1990). My suggestions are probably equally applicable to other mediation programs.

50. Nolan-Haley, supra note 48, at 1381.

51. Janet Reno, Address to the American Association of Law Schools (Jan. 9, 1999).

[Part One]

Back to table of contents >>