MEDIATION in appellate court

Mediation, provided for more than a decade in Maryland’s trial courts, is now part of the process for many civil cases heard at the appellate level.

In February 2010, the Court of Special Appeals launched a pilot program of court-ordered mediation, which means that people who appeal their civil cases to Maryland’s second highest court may ask for or be ordered to mediation before pursuing further litigation. Participants are not charged a fee for the mediation service in the pilot program.

The pilot program was created to reduce the cost and time for appeals, improve outcomes for litigants, prevent multiple appeals in the same case, and ease the Court of Special Appeals’ heavy caseload.

Robert J. Rhudy and Mala Malhotra-Ortiz
Robert J. Rhudy and Mala
Malhotra-Ortiz are the director
and deputy director, respectively,
of COSA’s mediation program.

“The experience of our own trial courts and civil appellate mediation programs in other states suggests that this new program offers the potential to resolve cases before the parties incur the expense and burden of preparing an appeal,” said Chief Judge Peter B. Krauser of the Court of Special Appeals. “Mediation provides an opportunity for litigants to devise solutions of their own accord. Because parties in mediation determine the future of their own controversy, mediated agreements have shown to be more sustainable than court-mandated resolutions. Overall, we hope that this program will benefit all Marylanders by improving outcomes, increasing the Court’s efficiency, reducing the time and cost involved in lengthy appeals and, in general, improving access to justice.”

Since parties will not be required to submit briefs or order transcripts until the mediation is completed, the savings could be substantial if settlements are reached. Cases resolved prior to a hearing save additional public resources by decreasing the Judiciary’s work load. Mediations are completed in most cases within 60 days of the order to mediation.

Chief Judge Krauser expects the mediation program will eventually lead to a substantial reduction in the civil cases heard by the Court of Special Appeals. The Court of Special Appeals hears approximately 1,300 civil appeals each year, of which nearly half are viewed as possible cases for mediation.

From the first mediation on March 19, 2010, through April 30, 2011, the program conducted 182 mediations. Of this total, 175 were concluded, with 121 full or partial settlements (69 percent) and 106 full settlements (60 percent), making the infant program one of the most successful state appellate mediation programs in the country where average mediation settlement rates are 35 percent to 40 percent. The most common case types mediated during this period were contract (49), domestic (48), tort (26), foreclosure (23), real property/zoning (19), and workers’ comp (10). The program mediated cases from 23 Maryland jurisdictions during this period.

The mediation program is woven into the court’s existing prehearing conference program, explained Robert J. Rhudy, director of mediation. “It is not too late for mediation at the appellate level,” Rhudy said. “By the time people have reached the appeals level, they have already had their ‘day in court,’ and may see that mediation is an attractive alternative to a lengthy and costly appellate battle. If no settlement is reached, the parties may proceed with their appeal.”

Mala Malhotra-Ortiz, an attorney and mediator, is the deputy director of the pilot program and works closely with participants.

For more information about the Court of Special Appeals Civil Mediation Pilot Program, please contact Robert J. Rhudy, director of mediation, Court of Special Appeals, 410-260-3716, bob.rhudy@mdcourts.gov, or visit the program’s website, www.mdcourts.gov/cosappeals/mediation.