Appellate mediation in New Mexico: an evaluation.I. INTRODUCTION
This article reports on the recently completed independent evaluation of the New Mexico New Mexico, state in the SW United States. At its northwestern corner are the so-called Four Corners, where Colorado, New Mexico, Arizona, and Utah meet at right angles; New Mexico is also bordered by Oklahoma (NE), Texas (E, S), and Mexico (S). Court of Appeals' mediation mediation, in law, type of intervention in which the disputing parties accept the offer of a third party to recommend a solution for their controversy. Mediation has long been a part of international law, frequently involving the use of an international commission, program. The Court began a mandatory mediation program in September 1998. A previous article in The Journal of Appellate Relating to appeals; reviews by superior courts of decisions of inferior courts or administrative agencies and other proceedings. 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 A court having jurisdiction to review decisions of a trial-level or other lower court.
An unsuccessful party in a lawsuit must file an appeal with an appellate court in order to have the decision reviewed. have been perennial perennial, any plant that under natural conditions lives for several to many growing seasons, as contrasted to an annual or a biennial. Botanically, the term perennial topics of conversation among judges, court staff, attorneys, alternative resolution experts, and scholars for the past twenty years TWENTY YEARS. The lapse of twenty years raises a presumption of certain facts, and after such a time, the party against whom the presumption has been raised, will be required to prove a negative to establish his rights.
2. . 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 ear·ly intervention
n. Abbr. EI
A process of assessment and therapy provided to children, especially those younger than age 6, to facilitate normal cognitive and emotional development and to prevent developmental disability or delay. (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 Not completed; not finished; not linked together. See resolve. 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 AFFIRMATIVE. Averring a fact to be true; that which is opposed to negative. (q.v.)
2. It is a general rule of evidence that the affirmative of the issue must be proved. Bull. N. P. 298 ; Peake, Ev. 2.
3. , because at the appellate level the room for fruitful fruit·ful
a. Producing fruit.
b. Conducive to productivity; causing to bear in abundance: fruitful soil.
2. 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 con·strain
tr.v. con·strained, con·strain·ing, con·strains
1. To compel by physical, moral, or circumstantial force; oblige: felt constrained to object. See Synonyms at force.
2. because appellate attorneys and their clients have developed entrenched en·trench also in·trench
v. en·trenched, en·trench·ing, en·trench·es
1. To provide with a trench, especially for the purpose of fortifying or defending.
2. positions. More importantly, the adversaries shore up their positions, especially after the basic costs of appellate litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called 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 Accordance is Bible Study Software for Macintosh developed by OakTree Software, Inc.
As well as a standalone program, it is the base software packaged by Zondervan in their Bible Study suites for Macintosh. with the untested assumption that bargaining prospects dwindle dwin·dle
v. dwin·dled, dwin·dling, dwin·dles
To become gradually less until little remains.
To cause to dwindle. See Synonyms at decrease. as the appellate process is extended. (6)
The New Mexico Court of Appeals provides an opportunity to scrutinize scru·ti·nize
tr.v. scru·ti·nized, scru·ti·niz·ing, scru·ti·niz·es
To examine or observe with great care; inspect critically.
scru the assumption that the possibility of settlement through mediation at the appellate level is short lived. The introduction of mediation in this Court occurs primarily after cases have been handled but unresolved through a summary procedure aimed at resolving more routine cases. If cases deemed appropriate for resolution under modified procedures are ultimately not amenable AMENABLE. Responsible; subject to answer in a court of justice liable to punishment. to summary treatment, then the prospect of mediation arises.
Most cases are eligible for mediation. Exceptions include appeals involving a pro se party; a driver's license Noun 1. driver's license - a license authorizing the bearer to drive a motor vehicle
driver's licence, driving licence, driving license
license, permit, licence - a legal document giving official permission to do something
revocation The recall of some power or authority that has been granted.
Revocation by the act of a party is intentional and voluntary, such as when a person cancels a Power of Attorney that he has given or a will that he has written. ; applications for stays; a petition for extraordinary relief; an incarcerated incarcerated /in·car·cer·at·ed/ (in-kahr´ser-at?ed) imprisoned; constricted; subjected to incarceration.
Confined or trapped, as a hernia. criminal defendant; or the state's mental health and children's codes. In the summer of 2000, the program began experimenting with pro se cases, on a strictly voluntary basis. (7)
The New Mexico setting is one that traditionally is believed to provide very few targets of opportunity for mediation. New Mexico's cases for mediation seemingly seem·ing
Outward appearance; semblance.
seeming·ly adv. are not amenable to negotiation (cases not resolved on the summary calendar) or are inappropriate because of issue complexity or difficulty (cases immediately placed on the regular calendar).
The objective of the grant-funded evaluation was three-fold: (1) to see if the untested assumption concerning early intervention is essential to successful mediation; (2) to evaluate the consequences of mediation in New Mexico on settlement rates, to gauge the reactions of attorneys to this method of dispute resolution, and to consider possible time and cost savings attributable to mediation; and (3) to consider the implications the New Mexico experience has for other courts.
II. COURT CONTEXT AND BRAND OF MEDIATION
The New Mexico Court of Appeals is a single, ten-judge, state intermediate appellate court with statewide jurisdiction over civil and criminal cases. The Court hears arguments primarily in Albuquerque and Santa Fe Santa Fe, city, Argentina
Santa Fe, city (1991 pop. 341,000), capital of Santa Fe prov., NE Argentina, a river port near the Paraná, with which it is connected by canal. , the state capital, but occasionally sits in Carlsbad, Las Cruces Las Cruces (läs kr`sĭs), city (1990 pop. 62,126), seat of Dona Ana co., SW N.Mex., on the Rio Grande, in a farm area irrigated by the Elephant Butte system; founded 1848, inc. 1907. , Las Vegas Las Vegas (läs vā`gəs), city (1990 pop. 258,295), seat of Clark co., S Nev.; inc. 1911. It is the largest city in Nevada and the center of one of the fastest-growing urban areas in the United States. , and Roswell. The overwhelming majority of the Court's jurisdiction is mandatory, with approximately 1000 cases filed annually. Civil appeals, including administrative agency An official governmental body empowered with the authority to direct and supervise the implementation of particular legislative acts. In addition to agency, such governmental bodies may be called commissions, corporations (e.g. cases, are approximately 500 in number, with about 450 criminal appeals, and fifty discretionary petitions (interlocutory appeals An interlocutory appeal, in the law of civil procedure is an appeal of a ruling by a trial court that is made before the trial itself has concluded. Most jurisdictions generally prohibit such appeals, requiring parties to wait until the trial has concluded before they challenge any ). (8)
Each judge is assigned one law clerk law clerk
A person, typically an attorney, employed as an assistant to a judge or another attorney, especially in order to gain legal experience. to assist primarily in opinion preparation. Law clerks generally are recent law school graduates and frequently hold their positions for one to three years. A pool of fifteen lawyers works for the Court as a whole. These central staff attorneys work on cases placed on the summary calendar as well as on fully briefed cases on the regular calendar.
After a notice of appeal (or petition for review) is filed, the trial counsel also must file a substantial docketing statement that summarizes the facts, issues on appeal, a list of pertinent PERTINENT, evidence. Those facts which tend to prove the allegations of the party offering them, are called pertinent; those which have no such tendency are called impertinent, 8 Toull. n. 22. By pertinent is also meant that which belongs. Willes, 319. authorities, and references and citations to prior and related appeals. Once the record of trial court documents is received, a central staff attorney makes a recommendation to a judge in charge of the case calendars on whether the case should be handled as a summary matter or placed on the regular (or general) calendar.
If the judge agrees that the case should be handled as a summary matter, a notice is sent to the parties proposing a preliminary, summary decision with legal citations Legal citation is the style of crediting and referencing other documents or sources of authority in legal writing.
In addition to the basic rules of footnoting and quotation that closely follows regular citation rules, there are several broad classes of law citation:
A transcript of record is required (summary proceedings An alternative form of litigation for the prompt disposition of legal actions.
Legal proceedings are regarded as summary when they are shorter and simpler than the ordinary steps in a suit. do not provide for the filing of a transcript), or the disposition may require support by other than New Mexico authorities. Cases initially not recommended for or not resolved on the summary track are placed on the regular calendar for fully written briefs, possible oral argument, and a written decision.
The summary calendar started in 1975 with an initial focus on criminal cases. By 1987 virtually all cases were potentially eligible. Court records indicate that approximately sixty percent of the Court's cases had been resolved on the summary calendar from 1990 to date. The impetus Impetus is a stimulus or impulse, a moving force that sparks momentum.
Impetus may also refer to:
1. Having or serving a purpose.
2. Purposeful: purposive behavior.
pur and deliberative de·lib·er·a·tive
1. Assembled or organized for deliberation or debate: a deliberative legislature.
2. Characterized by or for use in deliberation or debate. decision to increase both court efficiency and quality in the form of less time and cost to the attorneys and litigants. Appellate settlement conference programs historically have been characterized char·ac·ter·ize
tr.v. character·ized, character·iz·ing, character·iz·es
1. To describe the qualities or peculiarities of: characterized the warden as ruthless.
2. as one of the few ways that a court can cope with an increasing caseload case·load
The number of cases handled in a given period, as by an attorney or by a clinic or social services agency.
Noun by reducing the number of cases that it has to decide on the merits on the merits adj. referring to a judgment, decision or ruling of a court based upon the facts presented in evidence and the law applied to that evidence. A judge decides a case "on the merits" when he/she bases the decision on the fundamental issues and considers . However, the idea of mediation came to the New Mexico Court when the then chief judge attended a national meeting at which an appellate mediation program in Florida was highlighted. After extensive examination of mediation programs extant ex·tant
1. Still in existence; not destroyed, lost, or extinct: extant manuscripts.
2. Archaic Standing out; projecting. in the field, the Court settled on a particular structure and process. The New Mexico program represents a proactive policy of self-improvement. (Necessity is not always the mother of innovation.)
Mediation in New Mexico began on September 1, 1998, and continues to operate with the resources of a single mediator mediator n. a person who conducts mediation. A mediator is usually a lawyer, or retired judge, but can be a non-attorney specialist in the subject matter (like child custody) who tries to bring people and their disputes to early resolution through a conference. and a part-time administrative assistant. The mediator, one of this paper's authors, (10) is an attorney trained in modern mediation methods and hired by the Court, although he previously was one of the Court's central staff attorneys. The overwhelming numbers of cases subject to possible mediation are those that have failed to reach a summary disposition after being placed on the Court's summary calendar. Most of the other potential cases are those that have been screened for the regular calendar. The mediator examines both sets of these cases and issues notices to attorneys in virtually all cases eligible for mediation, informing them that their case has been referred to mediation. Mediation is mandatory unless the attorneys successfully persuade the mediator that their case is not appropriate for mediation.
Mediation conferences are generally held before briefing commences. Most of the conferences are conducted by telephone, although the mediator regularly conducts in-person conferences in Santa Fe, where his office is located, and in Albuquerque. From the program's start in September 1998, until June 30, 2000, approximately 300 cases had been screened for mediation. (11)
III. THE EVALUATION
The evaluation was organized to answer four basic kinds of questions commonly asked of appellate settlement conference programs:
* What are the consequences of mediation on the resolution of appeals? Has it produced negotiated agreements precluding the need for a judicial decision?
* How do attorneys view the mediation program? Are they receptive receptive /re·cep·tive/ (re-cep´tiv) capable of receiving or of responding to a stimulus. to it, and do they have favorable fa·vor·a·ble
1. Advantageous; helpful: favorable winds.
2. Encouraging; propitious: a favorable diagnosis.
3. opinions about their experiences?
* Are there time and cost savings to the court? Are there savings to litigants?
* How does the use of mediation fit into the Court's overall delivery of services?
The remainder of this article addresses these questions and suggests what the policy implications of the program's consequences are for the Court and for the rest of the appellate-court community.
A. Consequences of Mediation on Settlement
One of the obviously key questions concerning the consequences of mediation is the settlement rate after the introduction of mediation. The striking result of mediation in New Mexico is that, of the first 308 cases scheduled for a mediation session, eighty-eight were settled. That is a twenty-nine percent settlement rate.
There is no available industry standard against which to assess this figure. The California State Court of Appeals, Fourth District, Division Two in Riverside California, had a program that, in its first few years, involved intervention at a point in the appellate process parallel to New Mexico's. When the California program began in 1991, mediation was tried only in fully briefed appeals. Interestingly, the settlement rate ranged between twenty-five and twenty-eight percent in the program's initial stages, although the California program had the benefit of voluntary participation by the attorneys. The California Court deemed this initiative a success and maintained its post-briefing form until 1997, when the Court refocused mediation to occur before briefing. Hence, New Mexico's effort compares favorably fa·vor·a·ble
1. Advantageous; helpful: favorable winds.
2. Encouraging; propitious: a favorable diagnosis.
3. with a similarly situated similarly situated adj. with the same problems and circumstances, referring to the people represented by a plaintiff in a "class action," brought for the benefit of the party filing the suit as well as all those "similarly situated. program.
A more general observation concerning New Mexico's settlement rate is that it achieves a substantial number of negotiated agreements under conditions not assumed to be amenable to such an initiative. Mediation occurs after a form of summary disposition has failed or has been deemed to be unsuitable. Early court intervention into primarily routine cases is assumed to be essential for reaching negotiated agreements. New Mexico's program should be expected to produce few, if any, settlements. Hence, the figure of twenty-nine percent is substantial, although its full significance is discussed later in the section on time and cost savings.
A statistical analysis was conducted to determine what case characteristics or aspects of mediation are closely related to the likelihood of mediation. (12) A single factor emerged as influential in producing settlements: The likelihood of settlement increases the longer the elapsed time e·lapsed time
The measured duration of an event.
Noun 1. elapsed time - the time that elapses while some event is occurring from the date of the initial mediation conference until a resolution or impasse im·passe
1. A road or passage having no exit; a cul-de-sac.
2. A situation that is so difficult that no progress can be made; a deadlock or a stalemate: reached an impasse in the negotiations. . In other words Adv. 1. in other words - otherwise stated; "in other words, we are broke"
put differently , the more time a case remains under negotiation, the greater the chances of settlement. This finding means that when the mediator discerns the probability of settlement and gives the attorneys enough time to tackle outstanding issues, settlements are more likely achieved. Patience has its own reward.
The results do not mean that the mediator is gaining settlements simply by letting negotiation drag on Verb 1. drag on - last unnecessarily long
last, endure - persist for a specified period of time; "The bad weather lasted for three days"
2. endlessly. Negotiation without end in all cases would not produce results similar to those observed. That strategy would fail because the mediator would not be following up on the most promising candidates for settlement. The twenty-nine percent settlement rate is achieved because of the mediator's discernment and willingness to extend the negotiation beyond the boundaries of an initial session. Extending the time frame beyond an initial session is a reflection of the mediator's emphasis and focus on settlement, rather than on time. For example, a mediator may ask, "Can you try to respond to a particular outstanding issue in such-and-such a way?" or "If you are agreeable, can you make an effort by such-and-such a date?" rather than "Time's up. Sorry you folks couldn't agree on this particular issue."
The style of mediation in New Mexico is a combination of what experts have called two opposing polarities of "bargaining" and "therapy." (13) On the one hand, the mediation sessions are organized to achieve settlements. The parties and their attorneys clearly are encouraged to reconcile their differences. A focus on settlement is part of the bargaining style of mediation.
On the other hand, the New Mexico program mediator yields the floor to the respective sides and makes almost no attempt to steer steer
castrated male cattle beast over a year of age. See also bullock, buller steer.
steer Medtalk verb the discussion in a particular substantive manner. A session might last a few hours because the mediator sometimes holds separate or ex parte [Latin, On one side only.] Done by, for, or on the application of one party alone.
An ex parte judicial proceeding is conducted for the benefit of only one party. discussions with each side (pending mutual agreement) and allows parties to vent their feelings as well as give their respective arguments. What might be a relatively unique or special aspect of New Mexico's style is the mediator's way of drawing the parties out and encouraging negotiation.
The mediator opens the initial session, and continues throughout the session to ask each side questions in a Socratic style. The questions start with "What's this dispute all about?" proceeding to "What are the ends you wish to achieve (and to avoid)?" to "Do you have a settlement offer?"
The mediator has considerable information on the case prior to an initial session. Docketing statements, trial court pleadings pleadings: see procedure. , internal court memoranda prepared by central staff attorneys, and pre-mediation conference telephone conversations with the attorneys all help to provide a picture of the parties' positions and interests and a case's posture posture /pos·ture/ (pos´choor) the attitude of the body.pos´tural
1. A position of the body or of body parts.
2. . However, the mediator does not necessarily draw on documents and produce synthesizing statements such as "We are here to discuss the issue of such-and-such" or "The matter before us concerns x, y, and z." Rather, the mediator artfully tries to get each party to crystallize crys·tal·lize also crys·tal·ize
v. crys·tal·lized also crys·tal·ized, crys·tal·liz·ing also crys·tal·iz·ing, crys·tal·liz·es also crys·tal·iz·es
1. its own views, to articulate what it is seeking, to recognize the risks involved in achieving these ends, and to see the other side's perspectives. One might call this style of mediation "coaching."
Yet, despite the perhaps special nature of New Mexico's style, there is a common aspect of appellate litigation that underlies and enables the New Mexico program to achieve settlements. That aspect is the general lack of informal communication and negotiation between the sides. Based on an observation of mediation sessions, it is apparent that the introduction of mediation into the appellate process has spurred communication that otherwise would not have occurred. The basic condition plus a "coaching" rather than a mere "facilitating" role by the New Mexico mediator channels the discussion toward settlement.
Interestingly, the likelihood of settlement is not related to other possible explanatory ex·plan·a·to·ry
Serving or intended to explain: an explanatory paragraph.
ex·plan variables. The area of law (e.g., tort tort, in law, the violation of some duty clearly set by law, not by a specific agreement between two parties, as in breach of contract. When such a duty is breached, the injured party has the right to institute suit for compensatory damages. versus contract versus domestic relations domestic relations. For psychological and sociological aspects, see marriage. For legal aspects, see divorce; husband and wife; parent and child. versus agency proceedings), the particular county were the case had been tried, and the number of contacts made by the mediator with the attorneys after the initial session are not related to achieving settlements. Instead, the mediator's judicious ju·di·cious
Having or exhibiting sound judgment; prudent.
[From French judicieux, from Latin i structuring of a time frame that enables the attorneys to resolve outstanding issues increases the chances of settlement.
B. Attorneys' Views
One way to gauge the attorneys' receptivity receptivity,
n the state of being open to the action of a drug or homeopathic remedy. See also reactivity. of mediation is to ask those who have participated in mediation sessions to react to their experiences. Did the mediator do his job? What were the advantages and disadvantages of mediation? Was the experience worthwhile?
Data from written questionnaires completed by attorneys after mediation was tried in their cases are available to address these sorts of queries. Some questions are common to both attorneys whose cases settled and those attorneys whose cases did not settle. Other questions are aimed at only attorneys whose cases settled, with a parallel, but different, set of questions aimed at only attorneys whose cases did not settle. For this research, questionnaires completed and returned to the mediator program office between September 15, 1998 and September 30, 2000 are examined.
A basic expectation is that for mediation to be judged successful, at least fifty percent of the attorneys need to register favorable responses toward the new procedure. The higher the percentage, the more positive is mediation's performance. (14)
Fifteen questions formed the basic questionnaire. These questions range from issues concerning the comprehensibility of mediation to the mediator's role to the mediation agreement, in cases where it was reached. All questions asked the respondents In the context of marketing research, a representative sample drawn from a larger population of people from whom information is collected and used to develop or confirm marketing strategy. to indicate their approval to a particular proposition about mediation on a scale from one to five, where one indicates strongly agree and five indicates strongly disagree. (15)
The results indicate very positive performance. They are as follows:
* Ninety-seven percent (393/407) of the attorneys agree that mediation program's goals and requirements are understandable.
* Ninety-four percent (384/408) of the attorneys agree that the mediation is held at a convenient time.
* Ninety-four percent (384/408) of the attorneys agree that the mediator is a neutral third party.
* Sixty-one percent (247/406) of the attorneys agree that the mediator improves communication with the opposing side.
* Eighty-four percent (340/405) of the attorneys agree that the mediator keeps the session on focus.
* Sixty-seven percent (273/407) of the attorneys agree that the mediator helps identify options.
Based on the responses of all attorneys to a common set of questions, mediation appears to have been conducive con·du·cive
Tending to cause or bring about; contributive: working conditions not conducive to productivity. See Synonyms at favorable. to an orderly orderly /or·der·ly/ (or´der-le) an attendant in a hospital who works under the direction of a nurse.
An attendant in a hospital. and helpful dialogue. Given the busy schedules of attorneys, the high level of agreement that the session was convenient is remarkable. Similarly, an overwhelming majority of attorneys believe that the mediator contributes context conducive to negotiation. The lowest positive score given to the mediator occurred in the area of communication. Yet, sixty-one percent reported favorable judgments on that topic.
Concerning the views of attorneys whose cases did not settle, they remain positive in the main. They are as follows:
* Sixty percent (189/313) of the attorneys whose cases did not settle agree that the mediator points out the risk of continued litigation.
* Forty-two (126/311) percent agree that the mediator helps resolve procedural issues.
* Fifty-five (168/308) percent of the attorneys agree that the mediator helps clarify issues.
As expected, these reactions, while positive, are not as enthusiastic as the views of attorneys whose cases settled.
Attorneys whose cases settle propound To offer or propose. To form or put forward an item, plan, or idea for discussion and ultimate acceptance or rejection.
TO PROPOUND. To offer, to propose; as, the onus probandi in every case lies upon the party who propounds a will. 1 Curt. R. 637; 6 Eng. Eccl. R. 417. overwhelming positive views on the agreements that they have reached. They are as follows:
* Ninety-one (87/96) percent of the attorneys agree that mediation agreements are clear.
* Eighty-six (74/86) percent of the attorneys agree that mediation agreements are fair to them.
* Eighty-six (79/86) percent of the attorneys agree that mediation agreements are workable.
* Ninety-one (86/95) percent of the attorneys agree that the mediations are fair to the other side.
* Eighty-seven (79/91) percent of the attorneys agree that mediation agreements will last.
Finally, an acid test of whether attorneys regard mediation as an appreciable ap·pre·cia·ble
Possible to estimate, measure, or perceive: appreciable changes in temperature. See Synonyms at perceptible. improvement and worthy of continuation is whether they would commend com·mend
tr.v. com·mend·ed, com·mend·ing, com·mends
1. To represent as worthy, qualified, or desirable; recommend.
2. To express approval of; praise. See Synonyms at praise.
3. the procedure to others. The evidence is that all attorneys, whether their cases settled or not, see value in mediation, as shown in the following table.
PERCENTAGE OF ATTORNEYS AGREEING OR DISAGREEING TO RECOMMEND MEDIATION TO OTHERS Strongly Agree Undecided Disagree Strongly Agree Disagree All attorneys 44% 29% 15% 8% 4% (n=376) Attorneys 72% 22% 6% 0% 0% whose cases settled (n=81) Attorneys 37% 30% 17% 10% 6% whose cases did not settle (n=295)
Of special interest is the small number (four percent) of rejections: those attorneys who, after their unsuccessful experience with mediation, object to mediation in principle. This small percentage is no greater than the number of attorneys who have wanted mediation abandoned in other courts that have been evaluated as overall successful uses of mediation at the appellate level. (16) Hence, it seems fair and valid to infer that New Mexico's program is performing relatively positively.
C. Time and Cost Consequences
The mediation of civil appeals in the New Mexico Court of Appeals contributes to both time and cost savings, although resources are required to support the mediator and his assistant. In the past year, the total expense for the mediation program was approximately $97,000, including salaries, fringe benefits fringe benefits,
n.pl the benefits, other than wages or salary, provided by an employer for employees (e.g., health insurance, vacation time, disability income). , and long distance telephone charges. A precise possible cost savings figure is very difficult to estimate, but a general sense of the program's net value can be gauged in an approximate manner.
The settlement rate of twenty-nine percent under mediation translates to eighty-eight cases over two years, forty-four cases annually, and between three and four cases per month. These cases would probably otherwise have been on the regular calendar with full written briefs, possible oral argument, and a written court opinion. To measure the financial benefit to the court of these settlements, the study analyzed an·a·lyze
tr.v. an·a·lyzed, an·a·lyz·ing, an·a·lyz·es
1. To examine methodically by separating into parts and studying their interrelations.
2. Chemistry To make a chemical analysis of.
3. the workload The term workload can refer to a number of different yet related entities. An amount of labor
While a precise definition of a workload is elusive, a commonly accepted definition is the hypothetical relationship between a group or individual human operator and task demands. required to handle fully briefed cases and how it is distributed.
Generally, each judge on the Court receives three assignments per month to author opinions in fully briefed cases. The work required to prepare opinions in these cases is a combined effort of a judge and a law clerk. Sometimes a judge might request that a central staff attorney be assigned to tackle a fully briefed case, which the Court calls a "project matter." In instances of project matters, a central staff attorney might provide either a complete work up on a case (i.e., a recommendation and a proposed opinion) or an analysis of a specific issue. The bottom line is that the estimated numbers of cases settled annually (forty-four) through mediation exceed the annual number of regular calendar cases assigned to a judge and his or her court staff members. (17)
Hence, the mediation program consisting of one mediator, who also manages the program, and a part-time assistant requires fewer resources than are required to produce an annual assignment of written opinions in regular calendar cases. Judges and their staffs have other work to do, such as handling motions, reviewing discretionary cases, and conducting public education and outreach Outreach is an effort by an organization or group to connect its ideas or practices to the efforts of other organizations, groups, specific audiences or the general public. programs. Nevertheless, mediation constitutes a cost-effective way of using limited court resources.
The savings in time is, perhaps, even more striking. Based on information for 1997, cases on the summary calendar took approximately 150 days, on average, to be resolved, and cases on the regular calendar took 450 days. In contrast, the elapsed time from when a case is referred to mediation until it either settles or remains unsettled is sixty-eight or eighty-two days, respectively. Assuming that every settled case had spent 150 days on the summary calendar and sixty-eight days in mediation, the total amount from the date of the notice of appeal to voluntary dismissal Voluntary dismissal is when a law suit is terminated by request of the plaintiff (the party originally bringing the suit to court).
In the United States, voluntary dismissal in Federal court is subject to Rule 41(a) of the Federal Rules of Civil Procedure. is 266 days, on average, which is considerably shorter than 450 days.
For cases that do not settle in mediation, it is not possible to conclude whether mediation adds or saves time. Is mediation an extra step that increases the time to resolution or does it reduce time because at least some of the initially outstanding issues are resolved? Data are not available from program records to estimate the overall resolution time for the notices of appeal to resolution for unsettled appeals. Nevertheless, for cases that settle, the litigants experience definite timesaving time·sav·ing
Serving to save time through an efficient method or a shorter route; expeditious.
time because of mediation, and possibly a cost savings from reduced litigation (i.e., a reduced need to prepare briefs, motions, oral arguments, to consult with clients, and to travel to and from the courthouse). Thus, the use of mediation in New Mexico is an efficient use of public resources.
The mediation program established by the New Mexico Court of Appeals provides the taxpayers of the State with value for their dollars. More cases are resolved, and resolved faster, than would be without the intervention of a mediator.
A major, if not the principal, lesson to be learned from the New Mexico experience is that there is always room for effective negotiation. Even though the mediator initiates contact with the attorneys and the parties at a later stage in the legal process than is normally the case with appellate mediation programs, a lot of cases ultimately settle. Impressively, more cases are settled annually than are resolved on the regular calendar by a single judge and accompanying court staff members.
Looking to the future, state appellate courts that have not tried mediation might reconsider re·con·sid·er
v. re·con·sid·ered, re·con·sid·er·ing, re·con·sid·ers
1. To consider again, especially with intent to alter or modify a previous decision.
2. the reasons for their inaction in·ac·tion
Lack or absence of action.
lack of action; inertia
Noun 1. . The experience of the New Mexico program, as assessed by an independent evaluator, belies arguments asserting that mediation will not work on appeal, that there are not enough cases to warrant its introduction, or that there is no backlog.
APPENDIX A: MEDIATION REFERRAL NOTICE
June 11, 2001
Ms. Joan Smith 123 Main Street Albuquerque, NM 87110
Re: Rivera v. Jones, Ct. App. No. 20,000
MEDIATION CONFERENCE NOTICE
Dear Ms. Smith:
Pursuant to Rule 12-313 NMRA NMRA National Model Railroad Association
NMRA National Mustang Racers Association
NMRA New Mexico Restaurant Association
NMRA National Marine Representatives Association
NMRA National Masters Racquetball Association
NMRA National Motorcycle Racing Association 2001 and Ct. App. Order No. 1-24, In the Matter of the Court of Appeals Settlement Conference Procedures, a mediation conference has been scheduled in this case. This office will initiate a TELEPHONE CONFERENCE CALL on July 9, 2001, at 1:30 p.m. Our records show that your telephone number is 888-1000. Please allow at least two hours for the conference.
Enclosed en·close also in·close
tr.v. en·closed, en·clos·ing, en·clos·es
1. To surround on all sides; close in.
2. To fence in so as to prevent common use: enclosed the pasture. please find information relating to relating to relate prep → concernant
relating to relate prep → bezüglich +gen, mit Bezug auf +acc the Appellate Mediation Program. The mediation conference will be an informal meeting in which we will discuss the strengths and weaknesses of the parties' arguments, assess the risks of proceeding with the appeal, explore options for settling the case, and address case management matters. Counsel are expected to have consulted with their clients prior to the conference and to have as much authority as feasible regarding settlement and case management matters. The record proper will not be available during the week prior to the conference.
Mr. Gomez has also been notified of this conference. Please contact this office BY TELEPHONE IMMEDIATELY if we need to notify different or additional lawyers, if you need to have the conference rescheduled because of an unavoidable conflict, or if you would prefer to have the conference held in person.
Richard Becker Richard Becker (3 December 1887 in Hamburg – 16 Mar 1955 in Bad Schwalbach) was a German theoretical physicist who made contributions in thermodynamics, statistical mechanics, superconductivity, and quantum electrodynamics.
APPENDIX B: DATA MINING
A statistical technique is used to help discern dis·cern
v. dis·cerned, dis·cern·ing, dis·cerns
1. To perceive with the eyes or intellect; detect.
2. To recognize or comprehend mentally.
3. what possible aspects of civil appeals and the mediation process influence settlement. Are there particular case characteristics of appeals that settle? Is some element of the mediation process particularly effective in promoting settlement?
Data are available from mediation program records on five potential sources of settlement success. They include (1) a case's area of civil law; (2) the location where a case arose; (3) the elapsed time from the date when a case is sent a notice of mediation referral to an initial mediation session; (4) the elapsed time from the date an initial mediation session is scheduled to final resolution; and (5) the number of contacts, including telephone conversations, between the mediator and the attorneys.
There are three basic propositions that can be examined with this information. First, appeals in different areas of law might have different probabilities of settling. (18) Second, the location of the trial court where the appeal arose allows verifying the conventional notion that cases are different from one geographic area to another. Comparing cases from Bernalillo County, the State's population center, to cases from other counties captures some feature of an urban versus nonurban dimension that possibly shapes the nature of litigation. The third proposition to be tested is the working hypothesis arising from previous research that mediators gain more settlements when they extend negotiation beyond the initial session and make post session contacts. (19)
The key result is that the elapsed time from the initial mediation session to when the case either settled or was dropped from further mediation handling because of an impasse is the only statistically significant variable associated with settlement. The more time that the case remains actively under the mediator's monitoring, the greater the chances of settlement. Statistical results based on the application of a statistical technique called logistic regression In statistics, logistic regression is a regression model for binomially distributed response/dependent variables. It is useful for modeling the probability of an event occurring as a function of other factors. are shown in the following table.
WHAT VARIABLES INFLUENCE THE LIKELIHOOD OF SETTLEMENT? Coefficients Wald Significance Statistic Level The length of elapsed time from the date of an initial mediation conference to settlement or impasse .016 26.081 .001 The length of elapsed time from the date of referral to mediation to settlement .017 .401 .527 to an initial mediation session Number of contacts between mediator and the attorney -.042 .903 .342 Location of the Lower Tribunal Bernalillo v. administrative 1.165 4.339 .037 agencies Bernalillo v. all other counties .481 1.702 .192 Area of Civil Law in the Appeal General litigation and domestic relations v. administrative agency .295 .741 .389 and cases involving state or local government as a party * Statistical constant -1.984 11.630 .001 * This categorization of cases proved to be strongest statistically and was used, therefore, instead of other classification schemes, like general civil litigation v. domestic relations v. agency cases.
Only the variable measuring the time from an initial mediation to a case's settlement or impasse has a statistically significant effect on the probability of settlement. The value of the coefficient coefficient /co·ef·fi·cient/ (ko?ah-fish´int)
1. an expression of the change or effect produced by variation in certain factors, or of the ratio between two different quantities.
2. , .016, associated with this variable is positive, which indicates the longer the elapsed time, the greater the chances of settlement. Moreover, the significance level of .001 between the elapsed time and the likelihood of settlement suggests their observed connection is not a random association. If the significance level is .01 or smaller, then there is only one chance in a hundred that the variables are actually unrelated. None of the other variables have significance values of .01 or smaller, which is a common criterion of whether a variable has a statistically significant connection to another variable. However, if a less stringent test is used, and the significance level used is relaxed to .05, then it is also true that cases arising from administrative agencies are significantly more likely to settle than those from Bernalillo County.
As indicated in the text of the report, these statistical results are interpreted to mean that the New Mexico mediator discerns which cases are amenable to settlement and extends the negotiation period to permit the parties and their attorneys to resolve outstanding issues. Moreover, this process swamps the efforts of possible contending explanations of why some cases settle and others do not settle.
APPENDIX C: ATTORNEY QUESTIONNAIRES MEDIATION PROGRAM QUESTIONNAIRE [N] Please rate the effectiveness of the Appellate Mediation Program in the following areas: Strongly Agree Undecided Disagree Strongly n/a Agree Disagree You understood 5 4 3 2 1 the requirements and goals of this program The timing of 5 4 3 2 1 the mediation session(s) was convenient for you The mediator 5 4 3 2 1 was neutral The mediator 5 4 3 2 1 helped improve communication between the parties The mediator 5 4 3 2 1 kept the discussion on focus The mediator 5 4 3 2 1 helped identify options and alternatives The mediator 5 4 3 2 1 helped evaluate the risk of continued litigation The mediator 5 4 3 2 1 helped resolve procedural issues The mediator 5 4 3 2 1 helped clarify issues You would 5 4 3 2 1 recommend this program to others 1. Prior to the conference, what did you think the chances were that this case would settle prior to a decision by the Court of Appeals? --% 0=no chance at all of settlement 50=fifty-fifty chance of settlement 100=certainly would have settled 2. What, if anything, could the mediator have done to improve the chances of settlement of this case? 3. What aspect of this program did you find most valuable or helpful? 4. What aspect of this program did you find least valuable or helpful? 6. Please tell us any comments you may have about your experience, including suggestions for the improvement of the Appellate Mediation Program. Thank you for completing this questionnaire. MEDIATION PROGRAM QUESTIONNAIRE [Y] Please rate the effectiveness of the Appellate Mediation Program in the following areas: Strongly Agree Undecided Disagree Strongly n/a Agree Disagree You understood 5 4 3 2 1 the requirements and goals of this program The timing of the 5 4 3 2 1 mediation session(s) was convenient for you The mediator 5 4 3 2 1 was neutral The mediator 5 4 3 2 1 helped improve communication between the parties The mediator 5 4 3 2 1 kept the discussion on focus The mediator 5 4 3 2 1 helped identify options and alternatives The agreement 5 4 3 2 1 you reached is clear The agreement 5 4 3 2 1 you reached is fair to you The agreement 5 4 3 2 1 you reached is workable The agreement 5 4 3 2 1 you reached is fair to the other side(s) The agreement 5 4 3 2 1 will last You would 5 4 3 2 1 recommend this program to others 1. Prior to the conference, what did you think the chances were that this case would settle prior to a decision by the Court of Appeals? --% 0=no chance at all of settlement 50=fifty-fifty chance of settlement 100=certainly would have settled 2. What do you think would have happened if you did not participate in this program? 3. What aspect of this program did you find most valuable or helpful? 4. What aspect of this program did you find least valuable or helpful? 5. Specifically, how, if at all, did the mediator assist in the settlement of this case? 6. Please tell us any comments you may have about your experience, including suggestions for the improvement of the Appellate Mediation Program. Thank you for completing this questionnaire.
(1.) Richard Becker, Mediation in the New Mexico Court of Appeals, 1 J. App. Prac. & Process 367 (1999).
(2.) Roger A. Hanson, Alternative Dispute Resolution Procedures for settling disputes by means other than litigation; e.g., by Arbitration, mediation, or minitrials. Such procedures, which are usually less costly and more expeditious than litigation, are increasingly being used in commercial and labor disputes, Divorce (available at <http://www.factory 7.com/~rah> (accessed Feb. 17, 2002; copy on file with The Journal of Appellate Practice and Process)).
(3.) See e.g. Student Author, Note, The Minnesota Supreme Court The Minnesota Supreme Court is the highest court in the U.S. state of Minnesota and consists of seven members. The court was first assembled as a three-judge panel in 1849 when Minnesota was still a territory. Prehearing Conference--An Empirical Evaluation, 63 Minn. L. Rev. 1221 (1979) [hereinafter here·in·af·ter
In a following part of this document, statement, or book.
Formal or law from this point on in this document, matter, or case
Adv. 1. The Minnesota Prehearing Conference]; The Honorable James F. Couch A couch, loveseat, sofa, settee, lounge, davenport or chesterfield are items of furniture for the comfortable seating of more than one person. Compare the joiner's settle, with its separate seat cushions. , Jr., The New Maryland New Maryland may refer to:
Rhode Island, island, 15 mi (24 km) long and 5 mi (8 km) wide, S R.I., at the entrance to Narragansett Bay. It is the largest island in the state, with steep cliffs and excellent beaches. , 16 U. Mich. J.L. Reform 527 (1983); John H. Martin, Eighth Circuit Court of Appeals Pre-Argument Conference Program, 69 Judicature A term used to describe the judicial branch of government; the judiciary; or those connected with the court system.
Judicature refers to those officers who administer justice and keep the peace. It signifies a tribunal or court of justice. 312 (1986); Robert W. Rack, Jr., Pre-Argument Conferences in the Sixth Circuit Court of Appeals, 15 U. Toledo L. Rev. 921 (1984); David C. Steelman & Jery Goldman, Preargument Settlement Conferences in State Appellate Courts, 10 St. Ct. J. 4 (Fall 1986); Roger A. Hanson, An Assessment of Florida's Fourth District Court of Appeal's Settlement Conference Program, 18 Fl. St. U.L. Rev. 177 (1990); Appellate ADR ADR - Astra Digital Radio : D.C. Circuit Experimenting with Mandatory Mediation in 100 Lawsuits, 6 Alternatives to the High Cost of Litigation 35 (1988).
(4.) See e.g. Jerry Goldman, Ineffective Justice: Evaluating the Preappeal Conference (Sage Pub., Inc. 1980).
(6.) One of the exceptions to the introduction of mediation prior to briefing was the initial phase of a settlement program in the California State Court of Appeal, Fourth District, Division Two. From 1991 to 1997, mediation was targeted at fully briefed appeals. Not until 1997 did the program shift its emphasis to the settlement of cases before briefing, which is its current focus.
(7.) As of this writing, mediation conferences had been held in only four pro se cases, and no settlements were achieved.
(8.) Examining the Work of the State Courts, 1998: A National Perspective from the Court Statistics Project (Brian J. Ostrom & Neal B. Kauder eds., Natl. Ctr. for St. Cts. 1999).
(9.) The purpose of the summary calendar is to resolve more routine cases efficiently and to allow judges to spend more time on the complex cases. New Mexico's summary calendar is one of the ways first-level appellate courts have modified the traditional appellate process of a complete transcript, fully written briefs, arguments, and a signed, written opinion. For an evaluation of its effects, see Thomas B. Marvell, Abbreviate Appellate Procedure: An Evaluation of the New Mexico Summary Calendar, 75 Judicature 86 (1991).
(10.) See supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process. n. **.
(11.) A copy of the notice to attorneys informing them that their cases have been referred to mediation is found in Appendix A, infra [Latin, Below, under, beneath, underneath.] A term employed in legal writing to indicate that the matter designated will appear beneath or in the pages following the reference.
infra prep. .
(12.) The statistical analysis is described in Appendix B, infra.
(13.) Susan S. Sibley & Sally E. Merry, Mediation Settlement Strategies, 8 L. & Policy 7 (1986).
(14.) A similar approach and similar criteria of performance measurement are found in Trial Court Performance Standards: "Testing the Measures" (Natl. Ctr. for St. Cts. 1995).
(15.) Copies of the questionnaires are found in Appendix C, infra.
(16.) Roger A. Hanson, The Use of Mediation to Resolve Workers' Compensation workers' compensation, payment by employers for some part of the cost of injuries, or in some cases of occupational diseases, received by employees in the course of their work. Cases: A Report to the Tenth Appellate District of the Court of Appeals of Ohio (Natl. Ctr. for St. Cts. 1997) [hereinafter Hanson, Tenth Appellate District Report]; Roger A. Hanson, Report on Workers' Compensation Mediation Program of the Supreme Court of Appeals of West Virginia West Virginia, E central state of the United States. It is bordered by Pennsylvania and Maryland (N), Virginia (E and S), and Kentucky and, across the Ohio R., Ohio (W). Facts and Figures
Area, 24,181 sq mi (62,629 sq km). Pop. (Natl. Ctr. for St. Cts. 1999).
(17.) Three calendar cases per month times twelve months times one judge equals thirty-six cases.
(18.) See The Minnesota Prehearing Conference, supra n. 3, at 1221.
(19.) See Hanson, Tenth Appellate District Report, supra n. 16.
Roger A. Hanson, Judicial consultant, Ph.D., University of Minnesota (body, education) University of Minnesota - The home of Gopher.
Address: Minneapolis, Minnesota, USA. , 1973.
Richard Becker, Appellate Mediator, New Mexico Court of Appeals, J.D., University of Southern California The U.S. News & World Report ranked USC 27th among all universities in the United States in its 2008 ranking of "America's Best Colleges", also designating it as one of the "most selective universities" for admitting 8,634 of the almost 34,000 who applied for freshman admission Law Center, 1974.