Advocacy in the era of Appellate Mediation requires some special considerations. Andrew Goodman reflects on some of these in an extended article, from his forthcoming book Advanced Mediation Advocacy.
When you come to structure appellate argument as a negotiating tool you will obviously apply general principles of power imbalance in the mediation by analysing and leveraging the decision of the Court below. This may be limited to considering:
Almost inevitably you will have to apply evaluative approaches to measure the value of the first instance judgment. Your analysis of the Court below’s decision making will include:
Beyond that, preparation for the mediation will centre on you and the client finding true alternatives to the litigation/judgment below. This will be a search for value and is likely also to be a classic expansion of the pie. It may involve wider stakeholders, probably non-parties to the existing claim, and call for mixed motive negotiation. But you will have more information to assist in this process, from the judgment below.
The Royal Courts of Justice Annual Tables shows an upward trend in appeals allowed after full hearing as a percentage of disposals:
For the purpose of negotiated discounting it is possible to apply a broad statistical analysis. There are other pertinent factors – the time over which an appeal might keep the Respondent from the proceeds of the judgment; the costs of the exercise; the risk associated with such costs, and whether the costs below will become at large again; the costs of a potential retrial if that is either the intended or directed result.
There is much to prepare for, and much to consider, and the successful mediation advocate will not approach these matters lightly.
For some of the answers, and a fuller discussion, go to:
- the full article (22 pages) or
- place an advance order for Advanced Mediation Advocacy by Andrew Goodman, which will include a fuller and updated chapter.
Copyright Andrew Goodman 2023.