102 Delivering Justice for All Recommendations R41  Parties should be free to choose their own mediator or to use one contracted Ministry of Justice.   R42  Parties using a mediator contracted by the Ministry of Justice should pay additional fee set at a level that protects access to justice, in accordance established principles for setting civil court fees.  The fee should be a percentage the relevant setting down fee.   R43  Waivers available for court fees should also apply to mediation fees. Appellate mediation 171   Appellate mediation differs from pre-trial mediation.  A major aim of pre-trial mediation is to get the parties face to face, whereas in the appellate context they have had ample opportunity to negotiate.  There is therefore less to be gained from appellate mediation and correspondingly less reason for compulsion.  Also, mediation should not offer another avenue to a vexatious opponent, who seeks to drag out the appeal process. 172   On the other hand, experience abroad suggests that appellate mediation can offer real additional benefits.  Appeals involve different risks that may make an out of court settlement more attractive to the parties concerned: they raise the possibility of adverse precedent for both parties, and the chance of having the first instance judgment overturned.¹⁷⁸  Further, mediation after a judgment can help the parties re-establish their relationship business or personal can recognise a need for relief not taken account of in the court judgment, and can enable the parties to negotiate structured payments over time that might make the judgment easier to implement.  It may offer benefits even to cases that have been mediated before. 173   Although settlement rates for appellate mediation are lower than for pre-trial cases (40 50%), it can also lead to significant savings for the court and parties.¹⁷⁹ We propose that on appeal, judges should be able to order cases to go to mediation but without a presumption in favour of it. Recommendation R44  Judges should be able to order the parties to an appeal to attend mediation the hearing. 178   See, G Sharp �gAppellate Mediation: Cutting a Deal After the Deal has Already Been Cut�h New Zealand Lawyer (22 February 2001), 9; M Irvine �gBetter Late than Never: Settlement at the Federal Court of Appeals�h (1999) Journal of Appellate Practice and Process 341. 179   See, Taskforce on Appellate Mediation Mandatory Mediation in the First Appellate District of the Court of Appeal Report and Recommendations (USA, September 2001), 9; G Sharp, above n 178.