Preparing for Appellate Mediation Schemes

Preparing for Appellate Mediation Schemes

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:

• The obviously wrong judgment
• A degree of uncertainty created by permission to appeal from the Court below
• Valuing the prospects of success for negotiating purposes
• Accepting that new law may be necessary and calculating the value of precedent


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:

• The mechanics of fact finding – how the judge went about findings of fact, to include
• Receiving and weighing evidence, in terms of relative value
• The extent to which the judge relied upon impression or inference
• The adequacy or paucity of materials available to the judge
• Discretion – its exercise and restriction
• Authority and jurisdiction - the power to make decisions
• Transparency


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:

2017 38.73%;
2018 43.7%;
2019 45.32%;
2020 46.87%.

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:

Copyright Andrew Goodman 2023.

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