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Conditions in Eakin mediation may present challenges for deal-making

In a previous post, we began discussing a state government scandal in which Attorney General Kathleen Kane has become embroiled. As we noted, Kane recently criticized the appointment of a well-connected Philadelphia attorney to serve as mediator in a case involving Supreme Court Justice J. Michael Eakin and the Court of Judicial Discipline.

Mediation, of course, is supposed to be a process in which both parties are on equal footing in discussing their disagreements and negotiating resolutions, and it makes sense that there would have some concern about the ability of certain mediators—and the mediation process in general—to resolve a judicial misconduct case in a way that takes adequate stock of the public interest. One the other hand, the mediator in the Eakin case has suggested that it may, in fact, be very difficult to reach any deal in the case outside the courtroom. 

The reason is that the Court of Judicial Discipline has set forth conditions for the mediation that, according to the attorney-mediator, will dictate against resolution. Among these terms are that the agreement would have to be publicized before the court grants its approval. Though the court is not beholden to public opinion, public pressure could, it is argued, make the court hesitant to accept any settlement, regardless of how fair the parties perceive the agreement to be. Resolving the case effectively will require the mediator to hold focused discussions with the court about the process its disciplinary process, and exposure to the court of public opinion could prevent this from happening. The fact that a mediator has never before been appointed in a judicial misconduct case adds to the concern.

Every mediation case is unique, of course, and a mediator has to work effectively and creatively to address the challenges in each case.

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