Attorneys tend to think of mediation as a pre-hearing tool, and the concept usually fades from the mind after the Appellate Panel renders a decision. The successful attorney is generally quite content with preserving the outcome, while the appellant focuses on trying to find a reset button on appeal. Few appellate practitioners seek compromise at this late date.

On Nov. 1, however, our Supreme Court’s Pilot Program for Mediating Workers’ Compensation Appeals takes effect, and good counselors in South Carolina might take notice and reconsider the conventional wisdom of appellate mediation.

Under this new program, the parties to a workers’ compensation appeal can alert the Court of Appeals that they would like to mediate the case before investing either the money in ordering the transcript or the time into preparing the initial brief.

In turn, the Court of Appeals will hold the appeal in abeyance for sixty days to allow the mediation to take place, and if more time is needed, the parties may request a 30-day extension. Given the usual post-hearing mindset of the parties, does this make sense? The court obviously thinks so, and with good reason.

In truth, this is not an original idea. Many savvy appellate practitioners in our state have long pursued this strategy. The clever few have employed an appellate mediation strategy to great success, but in many ways, it has remained a secret of the trade. So why is the conventional wisdom regarding post-trial mediation sometimes flawed?

The answer lies in the narrowed universe of possible outcomes and the better understanding of cost. Going into a hearing, attorneys face an almost infinite “choose your own adventure” of potential outcomes. After a decision has been rendered, much of that uncertainty is gone.

The Appellate Panel might be eventually reversed, but most rulings of the panel are governed by the hard-to-overcome “substantial evidence” standard of review or are based upon credibility determinations within the Appellate Panel’s discretion, and are therefore unlikely to change. Even if the outcome is reversed and the case is remanded, the parties have already had a preview of the Appellate Panel’s treatment of the case. In other words, by this point, the opposing attorneys are no longer generals fighting for continental superiority. Rather, they are often battling over a few square miles.

This leads to the other consideration: cost.

How much are those few square miles of legal territory still in play worth? Obviously, if the parties are fighting over a key point of law, it might be the equivalent of a mountain pass that must be preserved. Experience suggests this is seldom the case.

Regardless, you can be certain that the appeal will require considerable time and resources.You don’t need me to tell you this (because I hear it from attorneys almost every day): Appeals are expensive and slow. During the month of October, the Court of Appeals issued opinions in six workers’ compensation appeals. The average lifespan of those six appeals was 22 months from the date the notice of appeal was filed to the date the opinion was rendered.

While I cannot report with any accuracy about the cost of an appeal, suffice it to say that ordering the transcript, preparing initial briefs, and filing 16 copies of the bound Record on Appeal and Final Briefs, is anything but cheap. The cost goes up if the case is set for oral argument, and if you have not noticed, the Court of Appeals went from one term of court per month to two this fall – increasing the number of oral arguments three-fold from last year.

So take into account the costs of an appeal in terms of both time and money when considering whether mediation might be a better course for your client. Unless the stakes are high, the winner is sometimes left with little after costs are paid. So, just as successful mediation requires compromise, keep in mind that “the winner” hardly ever “takes it all,” despite Abba’s song to the contrary. Finally, while I do not presume to know the minds of our appellate judges and justices, their decision to create this program might also be a subtle message that savvy appellate practitioners should consider. For all of these reasons, it is probably a good idea to discuss the new mediation program with your client, at the very least.

If you want to give mediation a go, refer to the Supreme Court’s Sept. 22, 2011 order, found here.

The pilot program sets forth how to select a mediator, who must attend the mediation, and what to do if mediation is only partially successful or entirely unsuccessful. Forms for the “Notice of Request to Mediate,” “Request for Extension of Time,” “Notice of Partial Settlement,” and “Notice of Settlement,” are also provided at the bottom of the webpage.

As with all appellate procedural matters, if you have any questions regarding this new program, you may call me directly at 803-734-1891 or email me at tgee@sccourts.org.

Tanya Gee is the clerk of the court for the South Carolina Court of Appeals. This column was reprinted with her permission from the Winter edition of the South Carolina Workers' Compensation Educational Association's newsletter, Chronicles.