In Kakani v. Oracle Corp., No. C 06-06493 WHA, 2007 WL 1793774 (N.D. Cal., June 19, 2007) the appellate court denied a joint motion to preliminarily approve a proposed class action settlement and specifically rejected the assertion that involvement of a mediator helps to prove lack of collusion).
Quote from the Court:
"It is also no answer to say that a private mediator helped frame the proposal. Such a mediator is paid to help the immediate parties reach a deal. Mediators do not adjudicate the merits. They are masters in the art of what is negotiable. It matters little to the mediator whether a deal is collusive as long as a deal is reached. Such a mediator has no fiduciary duty to anyone, much less those not at the table. Plaintiffs' counsel has the fiduciary duty. It cannot be delegated to a private mediator."
For the past decade, as part of the annual Minnesota State Bar Association ADR Institute, Hamline Professor James Coben has been producing short videos illustrating mediation litigation. Mediate.com is proud to now assist in the further distribution of these exceptional teaching and learning resources.
This enactment may portray "less than optimal" mediator performance. Rest assured that you are not at risk by hiring any of the ADR Institute Players as neutrals (or lawyers), despite what you see on the tape. The videos are fictional reenactments of the mediations underlying the published litigated cases.