Good Faith Participation in Mediation: Recent Decisions in New York and California

Introduction

In an effort to alleviate the growing congestion of court dockets around the country, judges increasingly require parties to engage in alternative dispute resolution, particularly mediation, prior to trial. Mediation is designed to be a confidential process lacking the formality and adversarial nature of court proceedings. However, participation in any court-ordered mediation is ultimately monitored by a judge. As a general rule, courts require parties to participate in mediation in good faith, and judges have the authority to sanction parties that fail to do so. The judge’s authority to impose sanctions for mediation conduct is grounded in the court’s inherent authority to regulate proceedings before it, and is further supported by local rules, Federal Rule of Civil Procedure 16(f) (requiring good faith participation) and statutes such as 28 U.S.C. § 1927 (prohibiting unreasonable or vexatious litigation). As in other areas of the law, however, “good faith” is not well defined.

This article examines some recent decisions by federal courts in New York and California enforcing the requirement of “good faith” participation in mediation. While it is well settled that a court may compel a party to mediate, it cannot compel a party to settle. Moreover, courts take care to protect the confidential nature of mediation proceedings. Accordingly, the requirement of “good faith” in mediation has clear limits. Federal courts in New York and California appear unwilling to probe into specific conduct at the mediation, in light of concerns over confidentiality and undue influence.

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