A court should address a threshold question when considering a mediation program: What is the current percentage of appeals that are dismissed, abandoned, or withdrawn?
If the current dismissal rate is 40% or more, mediation will add only slightly to the number of cases resolved without a court’s decision. Mediation might not be worth the effort in such a situation. However, if the current dismissal is in the range of 20 to 35%, a mediation program can increase appreciably the number of cases that are resolved without a court’s opinion. Of course, a court will want to address other issues in its deliberation over mediation. For an informative account of one court’s experiences, see Richard Becker, “Mediation in the New Mexico Court of Appeals,” Journal of Appellate Practice and Process 1 (1999), 367.
