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Appealing for appellate mediation

With a resolution rate of 58 percent, a pilot program offering appellate mediation in Maryland has proved successful enough in its first 14 months to warrant making it permanent, Court of Special Appeals Chief Judge Peter B. Krauser said last week.

Robert J. Rhudy

The 106 appellate cases resolved between February 2010 and April 30, 2011, represent the annual caseload of one judge on the Court of Special Appeals, said Krauser, who initiated the pilot program.

Still, “it’s not simply about our caseload,” he said. “Most important, it means that people will get a fast and speedy resolution of their appeals to the mutual satisfaction of the parties.”

Krauser based his comments on the most recent statistics from the Court of Special Appeals Civil Mediation Program, which launched on Feb. 17, 2010, and is to end next February unless the judiciary opts to make it permanent.

Of the 182 cases sent to mediation between the start date and the end of April, 106 were fully resolved before a mediator and another 15 had the issues on appeal narrowed, according to Robert J. Rhudy, who directs the program.

Fifty-four of the cases could not be resolved and had to go before a three-judge panel of the Court of Special Appeals. Another seven cases are pending, Rhudy said.

The appeals that have gone to mediation involve claims arising under contract, family law, torts, foreclosure, real property and workers’ compensation, Rhudy said.

Krauser said a 40 percent success rate is considered good, based on his discussion with judges from the other approximately 20 states with an appellate mediation program.

“If they reach a 50 percent settlement rate in a state, they think it’s great,” Krauser said.

Krauser predicted that if the Maryland trend continues — and the pilot is made permanent — 250 cases annually will be referred to a mediator and 150 will be resolved through mediation.

And in those cases not fully resolved, enough issues will be settled in mediation to make the appellate judges’ work easier and prevent the litigation from returning repeatedly to the Court of Special Appeals due to unsettled matters.

“We have appeals that bounce back and forth” between the trial and appellate courts, Krauser said. “Mediation permits the parties … to formulate a response that will hopefully resolve the pending matter and related matters.”

Willing to give

The two-year pilot is funded by a $250,000 grant from the Maryland Judiciary’s Mediation and Conflict Resolution Office, or MACRO. That pays for Rhudy’s salary, travel costs, mediation training for staff and the 20 retired judges who co-mediate cases, and office-related expenses such as copying, Rhudy said.

Rhudy and his staff review incoming civil appeals and recommend to Krauser which cases should be ordered for mediation, which is free to the parties during the pilot program. Mediation sessions are generally held within 60 days of the court’s order, Rhudy said.

Cases ripe for appellate mediation include those in which the parties are already discussing a potential settlement and family law matters that involve a financial dispute, such as the division of marital assets, and not custody of the children, Rhudy said.

He added he will not press for mediation in cases when one of the attorneys says “absolutely not” but will when both side are “willing to try it.”

“Both sides have to be willing to give a little something up,” Rhudy said.

He also has a sales pitch for parties who won at trial and thus may not see a benefit to mediating their victory away on appeal.

“You won below, but you don’t know what’s going to happen on appeal,” Rhudy said. “You can eliminate the risk, you can eliminate the uncertainty, you can eliminate the cost” through mediation, he added.

Attorney Susan E. Mays called the pilot program “wonderful” and worthy of being made permanent even though neither of the two cases she brought to appellate mediation were resolved.

“Mediation at any stage is a good thing to try,” said Mays, a Glen Burnie solo practitioner whose cases involved contract and family-law disputes. “Any opportunity you can give to litigants to reach their own resolution is a good thing for the litigants.”

When a case is ordered to appellate mediation, each party must submit a confidential pre-mediation information statement to the mediator. The statement provides information helpful to the mediator, including what it will take to settle the case, as well as the strengths — and weaknesses — of each side’s legal arguments, Rhudy said.

This information is not shared with the other parties or the judges on the Court of Special Appeals.

The mediation session is scheduled for four hours, usually at the Judicial Education and Conference Center in Annapolis. Subsequent sessions may be held if requested by the parties and agreed to by the mediators.

Sessions are co-mediated by Rhudy or one of his aides, assistant director Mala Malhotra-Ortiz or Tara K. Lehner, and one of the 20 retired judges who serve as mediators. (The judges’ salaries are not covered by the grant; they are paid for their time as if they were hearing cases by special assignment.)

War-weary litigants

Stacy LeBow Siegel, a trial lawyer who focuses on divorce and child custody issues, won a hotly contested pendente lite case at trial but opted for mediation when the other side appealed. Appellate mediation was a first for Siegel, who also teaches family law as an adjunct professor at the University of Maryland School of Law.

The case was resolved during a five-hour mediation session June 8.

Mediator Dennis M. Sweeney, a retired Howard County Circuit Court judge, and co-mediator Malhotra-Ortiz “were committed to getting it resolved,” said Siegel, of Stacy LeBow Siegel LLC in Towson. “I am absolutely happy to resolve cases without litigation assuming the parties can reach a fair and reasonable resolution.”

Sweeney said he was “kind of a skeptic” when asked to mediate cases at the appellate court level for the pilot program. After all, the parties had already tried and failed to come to an agreement.

“That didn’t work and they went to trial,” Sweeney said. “Why do we think this is going to work on appeal?”

But after mediating half a dozen cases and seeing Rhudy’s data on the program’s success, Sweeney said he has “been turned around” and is no longer skeptical.

Businesses, even if they won at trial, benefit from a mediated resolution because it eliminates the time and expense of appeals and the possibility of a new trial, Sweeney said. Family law cases, which are often emotional battles, can also be resolved through mediation at the appellate stage, when the war-weary litigants are often ready to talk, he added.

“The emotion has kind of run its course by this time and people are ready to get on,” Sweeney said.

Retired Court of Appeals Judge Alan M. Wilner said he has served as an appellate mediator in four cases, none of which was resolved through mediation.

“I was sort of discouraged by it because I was batting ‘O for four,’ which is what the Orioles are doing,” Wilner said.

But Wilner, like Rhudy and Krauser, said appellate mediation should be continued.

They’re very high on it and their statistics tend to support their enthusiasm,” Wilner said.