Should mediators publically declare a settlement to be fair?
It’s an interesting question vetted in a column in today’s Daily Journal, Los Angeles’s legal newspaper, by Jeff Kichaven and Jay McCauley, mediators at Professional Mediation & Arbitration, a new Los Angeles-based mediation firm. The veteran practitioners are dead against neutrals’ fairness opinions
According to the article authors, it has become “apparently customary” for courts to ask mediators whether a class action is fair. The authors say that mediators are agreeing to provide the opinion letters as a marketplace reality–that is, do it or risk not getting hired later.
The practice is “senseless,” say Kichaven and McCauley. “Fairness declarations are irrelevant. Worse, they place us all on the road to corruption. Lawyers should never request them, mediators should never provide them, and most importantly, courts should never invite them and should always strike them from consideration.”
The article is available with subscription at the Daily Journal’s webpage, here.