Title: Appellate Mediation in Pennsylvania: Looking Back at the History and Forward to the Future
Abstract: I. INTRODUCTION In recent years, appellate courts have increasingly integrated alternative dispute resolution methods into their procedures in an effort to reduce ever-expanding caseloads. The Pennsylvania Commonwealth Court, for example, adopted an appellate mediation program in September of 1999 and reports that it has been successful. This Article includes a summary of the foundations of appellate mediation that traces its primary development in the federal courts of appeal, a discussion of the extension of appellate mediation programs to state appellate courts, and an examination of the specifics of the Commonwealth Court's program. In its final section, the Article concludes that the Commonwealth Court's report of its program's success is well-founded and advocates for extension of that program. II. FOUNDATIONS OF APPELLATE MEDIATION A. The Second Circuit In 1974, Chief Judge Irving R. Kaufman of the Second Circuit instituted the first appellate alternative dispute resolution (ADR) program, hoping to expand upon the successes of ADR in reducing the caseload of courts of original jurisdiction. (1) Chief Judge Kaufman created the Civil Appeals Management Plan (CAMP), which had four main goals: (1) to preserve judicial resources, most notably time, by encouraging dispute resolution without judicial involvement; (2) for cases not subject to ADR, to reduce the time from the filing of an appeal to its disposition; (3) for cases that ADR will not be able to resolve, to help clarify the ultimate issues in the case; and (4) to quickly consider basic procedural motions without expending judicial resources. (2) Originally, the CAMP program employed one separate full-time Staff Attorney (also called staff counsel), who searched through the Second Circuit's appellate docket for the cases that appeared to be most conducive to settlement. (3) The Staff Attorney also conducted the settlement conference and served as program administrator. (4) The CAMP program was the first response to Federal Rule of Appellate Procedure 33, adopted in 1967, (5) which now provides as follows: The court may direct the attorneys--and, when appropriate, the parties--to participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement. A judge or other person designated by the court may preside over the conference, which may be conducted in person or by telephone. Before a settlement conference, the attorneys must consult with their clients and obtain as much authority as feasible to settle the case. The court may, as a result of the conference, enter an order controlling the course of the proceedings or implementing any settlement agreement. (6) Pursuant to CAMP, as originally designed, the Staff Attorney would peruse all new appeals for cases that would most benefit from a settlement conference. For those cases that the Staff Attorney determined to be candidates for a successful conference, the Staff Attorney would issue a scheduling order, which would delineate the date of argument, the date of the CAMP conference, and the due date for filing briefs and the record. (7) The Staff Attorney, counsel for the parties, and in some situations, the parties themselves, would participate in any number of conferences, each lasting from one to several hours. (8) However, the parties always maintained their right to proceed with an appeal if they were unable to resolve the dispute at the conferences. (9) The CAMP program remains the cornerstone of ADR in the federal appellate courts. The Second Circuit currently employs three Staff Attorneys, each of whom conducts approximately three conferences each day. (10) Whereas the Staff Attorney once culled the docket for potential CAMP participants, the court now requires all appellants in civil matters, with the exception of pro se and habeas corpus cases, to submit a pre-argument statement within ten days of filing an appeal. …
Publication Year: 2003
Publication Date: 2003-10-01
Language: en
Type: article
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