Cross-appeals involve review of trial court rulings in which more than one party seeks appellate relief, and different aspects of the decision are challenged by opposing parties. These matters arise from a fixed record and a defined set of issues, where the outcome depends on how those issues have been preserved, how they are presented within the record on appeal, and whether reversible error can be established under the applicable standards of review.

Because multiple parties seek different forms of relief, the scope of review and potential outcomes may not align, and the resolution of one issue may affect the position, exposure, or available remedies for another.

How Mediation Helps In This Context

Participants often address the issues presented on appeal and work through how those issues are supported or limited by the record, including whether they were preserved and how they are reviewed. In cross-appeals, participants may also test how the parties’ competing positions interact, including how success on one issue may affect the outcome of another.

They may assess how standards of review affect the likelihood of success across the competing issues, and how different appellate outcomes, including affirmance, reversal, or remand, could shift exposure between the parties. In some cases, a favorable result for one party may increase or decrease obligations for another, requiring participants to evaluate outcomes in relation to each other rather than in isolation.

Participants may also need to account for differing expectations about risk, outcome, and timing, as well as the practical and reputational effects of continuing the dispute through a public appellate process. Discussions may focus on whether resolution can be structured to account for those competing interests, including whether some issues can be resolved while others remain for decision or further proceedings.

Common Issues

  • Competing appellate positions challenging different aspects of the same ruling
  • Outcomes that may shift exposure between parties depending on how issues are resolved
  • Partial settlements addressing certain claims or issues while others remain pending
  • Structuring monetary or nonmonetary terms in light of competing relief sought.
  • Record limitations affecting how issues can be resolved or implemented
  • Public visibility of appellate proceedings and potential reputational impact

Some Considerations For Counsel Preparing For Mediation

  • Identify the issues on appeal and the relief sought by each party
  • Consider how the parties’ positions align or conflict, and how resolution of one issue may affect others
  • Evaluate how standards of review affect potential outcomes and likelihood of success across the competing issues
  • Consider how the record, including any gaps or limitations, affects the strength of each party’s position
  • Identify practical constraints affecting available resolution options, including the possibility of remand or further proceedings
  • Confirm who will participate and what authority is needed for resolution
  • Consider how timing, cost, and the likelihood of further proceedings affect settlement positions for each party
  • Evaluate whether public visibility, published decisions, or reputational considerations may influence strategy or resolution
  • Consider how any agreement would be implemented in light of the pending appeal

Appellate Mediation