The Role of the Courts: Judicial Review of Arbitral Awards and Mediated Settlement Agreements
It is becoming a matter of routine for federal and state judges to cite the involvement of a private mediator as evidence that bargaining in a class action case was conducted at arms-length and without collusion between the parties. In many cases, class action mediators offer up testimony about the nature of the bargaining, as well as subjective (and most often summary) opinions on the merits of the settlements they helped to broker. This article argues that this approach to mediator participation (and haphazard delivery and uncritical acceptance of mediator evidence) is an abdication of judicial fiduciary duty to ensure that proposed class action settlements are fair to absent class members.
James R. Coben, Creating a 21st Century Oligarchy: Judicial Abdication to Class Action Mediators, 5 Y.B. Arb. & Mediation 162 (2013).