Appeals carry a certain romance in the legal imagination: the stately courtroom, a hot bench, and a decisive opinion that rewrites the case and maybe a slice of the law. The reality often looks different. Months pass. Costs mount. A party’s life or business stalls while the mandate waits. Appellate mediation, handled well, can break that logjam. It is not a sign of weakness or a detour from principle. For a seasoned appellate lawyer, it is one more forum where advocacy, analysis, and judgment can deliver a better outcome.
This is an insider’s view of when and how appeals lawyers lean into settlement during appellate litigation, what to watch for, and what to expect when the court nudges, or orders, you to the table.
What appellate mediation actually is
Most federal circuits and many state appellate courts run formal mediation or settlement programs. Some require every civil appeal to go through an early screening for settlement potential. Others selectively refer cases. The mediator is usually a staff attorney or a private neutral with appellate experience. The typical format is confidential, facilitated negotiation by phone or video, occasionally in person, with focused sessions lasting a few hours up to a full day, and follow-ups as needed.
Unlike trial-level mediation, the record is closed. Evidence-gathering is over. The questions are narrower: legal error, prejudice, standards of review, preservation. That sharp focus makes risk easier to price, at least when everyone is honest about the odds. It also trims the theatrics. An appeals attorney cannot threaten to “bring ten witnesses you’ve never met,” but can explain why harmless error is not harmless if the panel applies the right framework.
The program’s confidentiality is not a mere courtesy. Settlement discussions will not appear in the record, and the mediator does not brief the panel about your posture. That shield encourages candor about business realities, insurance coverage, and client needs - the drivers of resolution that never show up in a published opinion.
Why appellate mediation matters even when you want a precedent
Appellate lawyers spend years building arguments for rules that outlast a case. Mediation, by design, trades the possibility of a published win for a definite resolution. The trade can still make sense, even for clients who care about precedent, for three reasons.
First, risk is asymmetric. If the standard of review favors the other side - abuse of discretion, harmless error, plain error - small flaws in your argument loom large. Mediating allows creative terms that blunt loss exposure, like structured payments, stipulated remand orders with guidance, or vacatur requests where allowed and justified.
Second, timing has value. Many appeals sit 9 to 18 months before decision. Post-judgment interest accrues. Injunctions may remain in place. Market windows close. A mediator can help quantify the time cost for each side and convert it into dollars or other terms that solve business problems.
Third, the record you have may not be the record you wish you had. Appellate law is unforgiving about preservation. If the key instruction objection never made it into the transcript, righteous indignation will not help. Settlement gives you a path around the hole you cannot fill.
Case types that tend to settle on appeal
Pattern recognition matters. Some appeals mediate more readily than others. Not because the law is soft, but because the parties’ incentives line up.
- Coverage disputes with defense-cost pressure. Insurers and policyholders know the burn rate. A mediator who understands reservation of rights, recoupment, and duty to defend thresholds can unlock partial funding or cost-sharing that ends parallel fights. Business divorces after a bench trial. Standards of review can make reversal unlikely, but reputational harm and operational paralysis push owners toward exit terms, buyouts, or stipulated remands for supervised unwinding. Employment cases with fee-shifting risk. Both sides often face double exposure: damages and fees. Appellate courts rarely disturb discretionary fee awards without clear error. A mediated resolution can cap fees and incorporate non-monetary terms like training and references. Family-owned real estate and probate matters. Appeals stall sales, refinancing, or distributions. Courts often channel these cases to mediation because timing is the enemy of value, and the parties have ongoing relationships. Class actions on certification orders. Interlocutory appeals sit at pressure points. A mediator experienced with Rule 23 or state equivalents can frame a settlement class with claim structures that align risk and relief.
Criminal appeals and high-stakes constitutional matters can and do settle in limited ways, for example via stipulated resentencing or plea adjustments on remand, but institutional constraints narrow the range of outcomes.
How an appellate lawyer prepares differently for mediation
Preparation looks less like a jury notebook and more like a risk matrix matched to deal architecture. An experienced appeals attorney builds a short, blunt case assessment that addresses five things: the likely panel’s leanings based on recent decisions, the true standard of review for each issue, preservation weak spots, remedy pathways if you win, and collateral effects if you lose. That assessment becomes the internal map for settlement authority.
Two documents matter. The first is the confidential mediation statement, which should be tighter than an opening brief and more pragmatic. Include the structural barriers to relief: jurisdictional quirks, standards of review, harmless error obstacles. Surface the relief you can actually get if you prevail, not the relief you wish existed. If your best-case scenario is a remand for recalculation, say so, and price it.
The second is a term-sheet template tailored to the case. You do not want to invent structure on the fly while momentum dies. If the dispute hinges on an injunction, your template should include a protocol for a stipulated remand with specific instructions. If the case involves ongoing business relations, draft an outline for future performance metrics, notice triggers, and dispute resolution steps. Appellate mediation often ends with agreements that need court action to take effect, so build in time and procedure to present a joint motion, a Rule 42 dismissal, or a stipulated vacatur where appropriate and permitted.
The role of the mediator, and how to use it well
Good mediators at the appellate level are translators. They convert doctrinal risk into business risk, and back again. They are not there to rule. They create a table where each party can say in confidence what it truly needs. The best sessions have an unmistakable rhythm: reality testing, shuttle diplomacy, and constructive silence. A skilled mediator will ask, with disarming simplicity, what you want the first paragraph of the panel opinion to say. The question forces clarity about your theory and its fragility.
Give the mediator tools. Clear, short charts showing the issues, standards of review, and remedies help focus everyone’s attention. Be precise with numbers and ranges. If you need board approval or carrier consent, state the cycle and bring the right people. Mediations die quietly when decision-makers are “available by phone” but actually in another meeting.
Pressure points unique to appeals
The leverage during appellate mediation differs from trial-level dynamics.
- Standard of review. De novo review invites bolder risk. Abuse of discretion or harmless error dampens appetites. Calibrate offers to those lenses. Remedy constriction. Many appellate wins do not end the case. They send it back. Talk concretely about what the remand means, how long it will take, and what it will cost. Parties pay to avoid years of “not over yet.” Published versus unpublished decisions. Courts control publication. The promise of a rule-setting opinion is not yours to sell. If precedent truly matters to a client, assess whether the case is a good vehicle. If it is not, settlement may be the wiser path. Bonds and stays. Supersedeas bonds strain cash flow. Some jurisdictions permit alternative security. Mediation can incorporate security adjustments or substitute collateral that lighten the load and clear the way for resolution.
When to say no
Not every appeal should settle. Drawing that line requires discipline. If a case presents a clean legal question likely to recur for your client or industry, and you have a strong vehicle with preserved issues and favorable standard of review, the investment in a decision can pay dividends. If the other side offers settlement terms that would leave your client worse off than the realistic downside risk after fees and time, walk.
Beware settlement that solves your short-term fear but entrenches a long-term problem. For example, if you represent a public entity defending regulatory authority, a private peace that undermines enforceability might invite a cascade of future challenges. On the other hand, a stipulated remand with clarifying guidance might both resolve the dispute and strengthen the framework.
Confidentiality, vacatur, and ethics
Two ethical guardrails shape appellate mediation. First, the confidentiality of settlement discussions is sacrosanct in most programs, but the scope varies. Read the program rules. Do not assume you can repurpose a concession if the mediation fails. Second, be transparent with the mediator about authority and constraints. Misrepresenting coverage, corporate approval, or regulatory limits wastes time and can backfire if the mediator senses gamesmanship.
Vacatur deserves special attention. Parties sometimes seek vacatur of a trial judgment as a settlement term. After the Supreme Court’s Bancorp decision, prevailing parties cannot count on automatic vacatur just because they settled. Courts weigh equitable factors, including public interest in the precedent. If vacatur matters, be prepared to justify it and to accept alternatives, like a remand for further proceedings that obviate the judgment without erasing it.
A short story from the trenches
A manufacturer lost a bench trial on a distribution agreement. The trial court found breach and awarded damages plus attorneys’ fees. The client wanted to clear its name and feared that the findings would inhibit future negotiations with other distributors. The record, however, had preservation gaps on the key parol evidence issue, and the standard of review favored the appellee. The likely outcome on appeal, best case, was a remand for recalculation of damages with the core liability finding intact.
We went to appellate mediation with a candid risk analysis and a term sheet that included a stipulated remand for entry of an amended judgment without certain findings that had reputational bite, a mutual non-disparagement clause, and a license to continue selling to a narrow set of accounts for six months. The mediator leaned heavily on the standard of review and helped our counterpart see that a faster, cleaner resolution would preserve relationships in the industry. The case settled within a day, with the court approving a limited remand and modified judgment. No headline victory, but the business walked away with what it most needed.
Building settlement value from appellate issues
The toolkit of an appellate attorney includes more than case law. You can use procedure to create settlement value.
Consider targeted motions. A well-timed motion to stay enforcement pending appeal can create breathing room and momentum for mediation, especially if you propose alternative security that keeps the appellee protected. A motion to expedite may push a reluctant party off the fence when delay benefits them. Joint motions to remand for limited purposes - for example, to correct a clerical error that skews interest - can build trust and establish a working cadence that eases broader negotiations.
Framing matters. Replace lofty pronouncements with risk buckets. For example: if the panel agrees the instruction error was preserved, reversal odds move from 20 to 50 percent; if not, harmless error analysis returns us to 15 percent. Tie each bucket to concrete outcomes: new trial, reduced damages, or affirmance. That map supports rational offers. Appellate lawyers who present those ranges earn credibility in the room, and credibility is currency.
Working with trial counsel and clients in mediation
Tensions sometimes surface between trial counsel and the appeals lawyer. Trial teams can feel attached to the facts and invested in defending their work. Appeals attorneys dive into a cold record and make surgical critiques. In mediation, align roles before the session. Trial counsel should own factual narrative and client history. The appellate lawyer should lead on standards of review, preservation, and remedies. Speak with one voice about risk.
Clients need preparation, too. They often come to appellate mediation with outsized expectations, fueled by a sense that “we were right” and an assumption that a higher court will fix things. Walk them through the standard of review in plain language. Abuse of discretion means the trial judge gets the benefit of the doubt. Harmless error means mistakes do not equal reversal unless they mattered to the outcome. Once clients internalize those concepts, they make better decisions.
Settlement structures that suit the appellate stage
Creativity pays. Money alone rarely solves the core problem on appeal. Think in terms of structure.
Payment timing can reflect bond burdens and cash cycles. Consider stepped payments tied to the appellate schedule, with reductions if payment precedes a certain date, or increases if the mandate issues without payment. If reputational harm drives the dispute, incorporate agreed press language or neutral reference letters. If a specific paragraph in a findings order spooks the market, ask whether a corrected or clarified order on remand can address it without erasing the judgment.
Remedies that fold into court action require precision. A stipulated remand should state the scope clearly: what the trial court can revisit, what remains untouched, and whether the appellate court retains jurisdiction. Judges appreciate clean, credible joint submissions. Sloppy papers erode trust and can derail approval.
The economics of appellate mediation
Appeals consume resources in ways that are easy to underestimate. Appellate briefs are time-intensive. Oral argument preparation often takes 30 to 50 hours, more if a moot court is warranted. Add record preparation, printing or formatting costs, and potential bond premiums. If a case settles in mediation, a client avoids not only those expenses but also the opportunity cost of executive attention and the risk of fee-shifting regimes.
Insurers and repeat litigants track these numbers. They know that shaving even 15 percent off expected value through a smart settlement can be rational when combined with certainty. An appellate attorney who speaks in expected value and variance, not just moral victory, is a better advocate in mediation.
Common mistakes that sink appellate mediations
Three errors recur. The first is positional opening offers, untethered to appellate risk. If you open with trial-level rhetoric, you invite stalemate. The second is bringing the wrong people. Without someone who can say yes on the spot, momentum evaporates. The third is ignoring non-monetary levers. Parties leave value on the table when they fail to propose terms like confidentiality brackets, corrective statements, limited vacatur where equitable, or operational accommodations that cost little but matter a lot.
A practical, minimalist checklist for counsel heading into an appellate mediation
- One-page risk grid with issues, standards of review, and realistic remedies if you win or lose. Draft term sheet, including any court actions needed to implement the deal. Authority ladder mapped and present, including insurer or board sign-offs. Calendared constraints: bond deadlines, interest accrual dates, business milestones. Plain-English script to explain risk and outcome ranges to decision-makers.
The court’s perspective
Appellate courts are not shy about their interest in settlement where appropriate. Dockets are heavy, and not every dispute calls for a precedential opinion. Still, courts care about integrity. They do not want to be a rubber stamp for private bargains that distort public law. Programs succeed when counsel honor that boundary. Bring mediable issues, not attempts to launder policy changes through a remand order. Propose solutions that respect the trial court’s role. Judges notice when lawyers treat the institution with care.
Some circuits and states employ mediators who are former appellate practitioners. They understand how a panel is likely to parse your issue. They will probe whether you have a jurisdictional hang-up lurking in the background, or whether a post-judgment motion could have mooted the appeal. Take that probing as a gift. It may steer you toward a settlement that fixes the right problem.
Technology, process, and the human factor
Most appellate mediations now run by video, which reduces travel costs and scheduling pain. Use the medium wisely. Short sessions with scheduled breaks beat marathons. Share key documents on screen rather than relying on memory. Avoid side chatter by messaging only within your team and keeping your client focused. Video also changes the temperature in the room, for better or worse. Tempers cool faster when people step away, but rapport can be harder to build. A quick pre-session call with the mediator helps bridge that gap.
At heart, mediation is human. Appeals abstract the case. People still carry the sting of a loss, the pride of a win, and the fear of uncertainty. A good appeals lawyer acknowledges those emotions without letting them steer strategy. Respect on both sides builds trust faster than bluster, and trust moves numbers.
How appellate mediation fits the broader strategy
An appellate attorney should treat mediation as one phase in a continuum. The brief you file, the stay you seek, even the tone you strike at oral argument can influence settlement at any point. A measured, precise brief that concedes the small points and frames the dispositive one with clarity sends a signal. The same is true of a realistic bond proposal. Overreaching, by contrast, can freeze settlement and harden the other side.
After argument, some cases ripen quickly. Panels hint with questions. If you hear concern about jurisdiction or preservation, consider a quiet outreach to the mediator to reopen talks. Many programs permit post-argument mediation. The window between argument and decision can be short, so have authority ready.
Final thought for clients choosing appellate counsel
When interviewing an appeals lawyer or appellate attorney for a case that may mediate, ask about their settlement philosophy. Do they run parallel tracks, building the strongest argument while identifying off-ramps? appeals attorney Can they convert standards of review into dollars and sensible terms? Have they navigated stipulated remands, partial vacatur requests, or complex fee settlements? Listen for fluency in appellate law and pragmatism about business outcomes.
The best appellate lawyers treat mediation not as a retreat from advocacy but as another arena for it. They argue to a single decision-maker during oral argument. In mediation, they argue to both sides’ better judgment, using the same tools - precision, candor, and structure. When done well, appellate mediation does not merely avoid risk. It secures results that a published opinion could not deliver, at a fraction of the cost and time.