“Per Curiam Affirmed: What it Means – and Why it Matters in Appellate Mediation”
Appellate mediation is increasingly recognized as a valuable tool for resolving disputes that reach the appellate courts. Yet many participants in these mediations—especially parties and some attorneys—may underestimate how much the form and style of appellate rulings can affect risk assessments and negotiation dynamics.
A prime example is the “per curiam affirmed” decision. While it may appear unremarkable at first glance, it often carries significant implications for mediation strategy, especially in the evaluation by the parties of their particular interests and risks throughout the appellate process.
What Is a Per Curiam Affirmed Ruling?
“Per curiam” means “by the court.” A per curiam affirmed decision generally means that the appellate court has unanimously upheld the lower court’s ruling without issuing a detailed opinion. These rulings are often very brief—sometimes a single sentence—and do not identify a particular judge as the author.
The lack of a written opinion means the court offers no legal reasoning, no clarification of disputed points, and no guidance for future cases. It’s the appellate court’s way of saying, in effect, “The trial court got it right, and nothing more needs to be said.”
Why This Matters in Appellate Mediation
When attorneys and mediators help parties assess their prospects on appeal, they often focus on predicting the outcome based on case law, legal errors, or judicial leanings. But too often, they overlook the practical reality that many appeals end with per curiam affirmances, especially in intermediate courts of appeal.
This has three major implications for mediation:
1. Litigation Risk May Be Higher Than Appellants Expect
Per curiam affirmances offer no detailed explanation and therefore no “precedential win.” If an appellant’s goal is to get legal vindication, change the law, or establish a favorable precedent, a per curiam decision doesn’t accomplish that—even if the ruling were to reverse the lower court.
For the appellant, the odds of outright reversal with a published opinion are statistically low, and the risk of a quick affirmance (often without oral argument) is high. This is critical to incorporate into any realistic expected court outcome analysis during appellate mediation.
2. Settlement May Be the Only Way to Influence the Outcome
Because a per curiam affirmance does not explain or refine the law, the losing party on appeal walks away with no clarity, no closure, and no roadmap. In contrast, a mediated settlement gives parties the opportunity to craft their own resolution, potentially with forward-looking agreements that address underlying interests—such as reputational concerns, business relationships, or compliance commitments.
For parties hoping to influence future behavior, a negotiated outcome may offer more control and meaning than a silent affirmance.
Using This Mediation Strategy
Mediators can incorporate per curiam affirmances into their private sessions (private meetings) and pre-session preparation. Some useful tactics include:
Reality-testing with both parties: “What happens if the court affirms without explanation?”
Reframing the appeal as a high-risk, low-reward endeavor, particularly when legal errors are minor or case law is against the appellant.
Exploring the value of a negotiated resolution that provides mutual benefit—even if neither party gets a “win” on the record.
For attorneys, including statistics on affirmance rates or citing recent per curiam cases from the relevant appellate court can support risk-adjusted settlement discussions.
Conclusion: A Silent Ruling Speaks Volumes
In appellate mediation, it’s not enough to know the law. Attorneys and mediators must understand how courts decide cases procedurally and stylistically—and how those habits shape the incentives to settle.
A “per curiam affirmed” ruling may be just a few words on the page, but in the context of appellate mediation, it should speak volumes. It tells us that the court is unlikely to engage deeply, the outcome may be predetermined, and the true opportunity for meaningful resolution may lie not in the courthouse, but at the mediation table.
