It’s Not the Wild West: Determining Which Law(s) Governs Your Mediation

Mediators are expected to play the role of “Devil’s advocate,” questioning the strength or viability of the various legal arguments being asserted by parties and/or their counsel. In this context, mediators may dive deeply into the law applicable to the underlying dispute (and defenses). The parties may provide sophisticated though conflicting analysis of that law in the mediation briefing and during the session. But what about the law applicable to the mediation itself? What law governs whether, and if so, to what extent anything said or done in the mediation is discoverable in another case? Similarly, if one side must later seek to enforce a mediated settlement agreement, what law applies and in what court? There is often little thought given to the law that would govern these important questions—before, during or after the mediation session. And the sparse caselaw is surprisingly inconsistent in approach. This session will explore some of more interesting cases and hypotheticals as well as best practices for advocates and mediators.  

Featured Speakers:

• Tamara Lange | U.S. District Court, Northern District of California
• Roderick M. Thompson, Esq. | JAMS