Pre-Argument Settlement at the Michigan Court of Appeals: A Secret Too Well Kept

I. INTRODUCTION Unbeknownst to many practitioners, the Michigan Court of Appeals, like several other state and federal appellate courts, uses facilitative mediation to resolve or simplify issues on appeal. The use of meditation at the appellate level is relatively new: It has, for the most part, developed since the late 1980s and nearly 1990s, although a pioneer mediation settlement program has been used by the United States Court of Appeals for the Second Circuit since 1974. (1) Generally speaking, most lawyers do not view the appellate level as a time at which settlement or mediation should be considered. However, views have begun to change in the past fifteen years. Recent positive experiences with, and recent publicity about, alternative dispute resolution in general, coupled with federal appellate-court settlement program successes, have led several state appellate courts to adopt settlement programs. Behind this trend seems to be appellate courts' realization that adverse trial-court decisions can cause appellants to reconsider what they once may have thought of as strong cases, while appellees may wish to avoid both the risk of reversal and the time-consuming and expensive appeal process. (2) And appellate courts with increasing dockets have welcomed mediation to promote and expedite pending appeals. (3) The Michigan Court of Appeals Pre-Argument Settlement Program (4) is the focus of this article. It was initiated and is maintained for the purpose of resolving parties' disputes, which in turn helps to reduce the number of cases on the Court's docket. Experience shows that the Program can reduce costs for the Court and the parties, and can produce a settlement that satisfies all involved. This article provides an overview of the Program, presents the settlement rates for 1999-2004, estimates the cost savings attributable to those settlements, and concludes that the Program is a success. II. BACKGROUND OF THE PROGRAM The Program started as a pilot program that ran from 1995-1997. (5) The Court wanted to examine whether a settlement program would be feasible--and successful--for Michigan appeals because, although settlement programs were proven successful in federal appellate courts, the results in state courts were mixed. (6) During the pilot period, volunteers from the state bar association's Appellate Practice and Alternative Dispute Resolution Sections served as volunteer mediators in the 120 cases assigned to the pilot program. (7) The emphasis was on resolving complex or "box" cases (those in which the record is contained in one or more boxes) through settlement before they were sent to research, which would result in significant cost and time savings for the Court. (8) In the first year, forty percent of the cases placed in the pilot program settled, and in the second year, thirty-two percent settled. This compares to a normal dismissal-by-stipulation rate of seventeen percent, which figure is presumed to include primarily cases that have settled. (9) The Court, apparently considering the pilot program a success, began planning for a permanent program. By January 1998, the Program was official, and by February 1998, it was fully operational. (10) Once it was official, a push was made to include a more representative sample of cases in the Program. (11) Originally, two staff attorneys conducted the Program. In late 2001, the Program was restructured; the Settlement Office is now staffed by one full-time attorney, who is the director of the Program, and an administrative assistant. (12) Also in 2001, the Settlement Office began using volunteer circuit court judges to mediate complex cases, and in 2002, it began using volunteer family law mediators to mediate domestic relations cases. The Program goal is for a settlement rate of about a third of the cases placed in the Program. (13) A Settlement Committee consisting of three Court of Appeals judges, the Settlement Director, and the Research Director oversees the Settlement Office, (14) reviewing operations, policy, and the potential development and expansion of the Program. …