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Mediation: It’s not just for pre-trial 

JUSTICE DANIELSON: Interest in mediation at appeals level is low.
  • JUSTICE DANIELSON: Interest in mediation at appeals level is low.

Most laymen think of mediation as a process that's done before trial, with the hope of avoiding trial. And so it is, but there's also a lesser-known mediation after trial, with the idea of avoiding a costly appeal. The Arkansas Court of Appeals has made mediation available since last September. Only a couple of cases have gone through it, however, the great bulk of lawyers and clients choosing to follow the normal appeals process.

The concept of resolving differences by means other than trial has gained popularity nationwide in recent years. In Act 1179 of 2003, the Arkansas legislature declared that, “It is the duty of all trial and appellate courts of this state, and they are hereby vested with the authority, to encourage the settlement of cases and controversies pending before them by suggesting the referral of the case or controversy to an appropriate dispute resolution process ... ”

The Arkansas Supreme Court regulates the legal system in Arkansas, and a Supreme Court committee recommended a pilot program in mediation for the Arkansas Court of Appeals, the state's second-highest court. When a party files an appeal from a trial court decision, the circuit clerk provides a form asking both sides if they'd like to mediate. If both do, the appeal is stayed, and a mediator is assigned from a list of mediators certified by the state Administrative Office of the Courts.

“Preparing a record of the trial is the greatest expense of appeal,” Chief Judge Larry Vaught of the Court of Appeals said. If both sides agree to mediation, they don't have to purchase a record. If the parties settle their differences through mediation, the case ends there. If they can't resolve their differences in 60 days, the case reverts to the normal appeals process.

Supreme Court Justice Paul Danielson is an advocate of mediation, and chairman of the Court committee that oversees the Court of Appeals pilot program. It was Danielson who  suggested the program be established. The federal courts and some state courts employ mediation at the appellate level, he said, and, “There are things you can do in mediation that you can't do in court.” Matters that would be public record in court can remain private in mediation. The opposing parties get personally involved in the negotiations, and that sometimes aids in reaching agreement.

The Court of Appeals pilot program will eventually be evaluated, and decisions made on whether to continue the program and possibly even expand it to the Supreme Court. No date for that evaluation has been set, but the prospects for appellate mediation aren't bright.

“So far, there's not been a lot of interest,” Danielson said. “I suspect if that continues, the program will be dropped.”

Why are appellate mediation programs popular elsewhere and not in Arkansas? “Arkansas doesn't have the congested dockets that many states have,” Danielson said. “When I was a circuit judge, if someone really wanted a jury trial, we could get one in 4 to 8 months. In other states, you may wait a couple of years for a trial.” People who've waited years for a verdict are ready to get an appeal decided as quickly as possible. Arkansas's small population is largely why court dockets aren't as crowded as elsewhere, Danielson said — “Rural areas have few cases.” And, he added, “I think we have a pretty good court system. People are taking care of business.”

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