Settlement discussions pending appeal involve efforts to resolve a dispute during the period in which appellate review is contemplated or underway, including before a notice of appeal is filed to while an appeal is pending for decision. In this context, the dispute is shaped by the constraints of the appellate process, where the record has been established, and the issues for review have been defined.

At this stage, the parties are often assessing whether to pursue or continue appellate review, and the potential results of that review, including affirmance, reversal, or remand, and how those outcomes may affect the dispute as a whole.

How Mediation Helps In This Context

Participants often address the issues that may be presented on appeal and work through how those issues are supported or limited by the record, including whether they have been preserved and how they are likely to be reviewed. Because the matter is in an appellate posture, participants test their positions against the likely outcomes of appellate review and evaluate the strengths and vulnerabilities of those positions with greater clarity.

They assess how standards of review may affect the likelihood of success and how different appellate outcomes, including affirmance, reversal, or remand, would influence the parties’ obligations, exposure, or strategic positions. In many cases, the costs already incurred and the anticipated costs of pursuing or continuing appellate proceedings factor into decision-making.

Participants may account for differing expectations about risk, timing, and outcome, including decisions about whether to initiate or continue appellate proceedings, as well as the potential impact of a published decision or further proceedings. Discussions focus on whether resolution at this stage would reduce uncertainty, avoid additional cost and delay, or allow the parties to control the outcome rather than leaving it to the appellate process.

Common Issues

  • Evaluation of whether to pursue or continue appellate review
  • Assessment of potential appellate outcomes, including affirmance, reversal, or remand
  • Timing and cost of initiating or continuing appellate proceedings
  • Structuring settlements in light of the existing record and issues likely to be presented on appeal
  • Partial settlements resolving some issues while others remain subject to potential or ongoing appellate review
  • Potential impact of published decisions or further proceedings
  • Public visibility of appellate proceedings and reputational considerations

Some Considerations For Counsel Preparing For Mediation

  • Identify the issues likely to be raised on appeal and the relief sought
  • Evaluate how standards of review may affect potential outcomes and likelihood of success
  • Consider how the existing record supports or limits the parties’ positions
  • Consider whether to pursue or continue appellate review and how that affects settlement positions
  • Assess the timing and cost of anticipated or ongoing appellate proceedings
  • Identify whether some issues can be resolved while others remain for decision
  • Identify who will participate and what authority is needed for resolution
  • Evaluate whether public visibility, published decisions, or reputational considerations may influence strategy or resolution
  • Identify whether court approval, remand, or other procedural steps will be required to implement any agreement

Appellate Mediation