Most laypeople are familiar with the basic concept of an appeal: if you get a result in district court that you believe is incorrect, you “take it up on appeal” – that is, you seek review from a higher tribunal. In Nevada, every appeal in the state is taken directly to the Nevada Supreme Court. Although we now have an intermediate appellate court in our state, there is no mechanism by which a litigant can appeal directly to that new court. The only way a matter ends up in front of that intermediate court is by “push down” from the Nevada Supreme Court.
The “push down” model is an uncommon approach to the appeals process. Also uncommon is our state’s Appellate Settlement Program. Started in 1997 and governed by Nevada Rule of Appellate Procedure (“NRAP”) 16, the Supreme Court Settlement Program requires virtually every Nevada litigant involved in an appeal to participate in early mediation, a form of alternative dispute resolution. The program has been incredibly successful over the last two decades, with over 50% of the appellate cases assigned to the program reaching settlement without any direct action by the Supreme Court.
There are tremendous benefits to the Supreme Court Settlement Program, the first of which is efficiency. Unlike a fully briefed and argued appeal, which can take months or even years to resolve, the Settlement Program results in a mediation session occurring very early in the process, usually within only a few months of filing the appeal. If successful, then, mediation through the Settlement Program can shave years – and tens of thousands of dollars – off the costs (in time and treasure) of the appeal process.
Another obvious benefit of the Settlement Program is that mediation is handled by a specially trained, appointed settlement judge – not the trial court judge who issued the ruling being appealed. The settlement judge is a neutral “fresh set of eyes”, with his or her own experiences and perspective. Especially in highly contentious disputes, the settlement judge’s unbiased and often novel point of view can be extraordinarily beneficial to both sides. Also, since NRAP 16(h) imposes a shield of confidentiality on the mediation process, the litigants are able to speak with the settlement judge freely and informally, which often enables the distillation of both sides’ respective positions and concerns.
One of the greatest – and yet least discussed – benefits of the Supreme Court Settlement Program is that it allows the parties, working with the settlement judge, to go well beyond the typically narrow issue(s) being appealed. NRAP 16(e)(2) states that, “[t]he agenda for the settlement conference . . . shall be at the discretion of the settlement judge.” In other words, the settlement judge is free to cover any and every topic which may be beneficial to global resolution of the case. While the appeal itself may address only some tiny procedural or technical issue, the Settlement Program nevertheless allows the parties to tackle other issues and, in some cases, even to resolve the entire lawsuit.
At SmartLaw, whenever possible, we strive to maximize the value to our clients of the Supreme Court Settlement Program. Mediation with a settlement judge is often a turning point in cases we handle, and we have emerged from several such mediation sessions with a total case resolution. Whether we handled your underlying matter from the start, or are instead acting only as your appellate counsel, we can help you get the most out of the Appellate Settlement Program.