Originally from Alternatives to the High Cost of Litigation

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A senseless practice in the settlement of class actions threatens lawyers, mediators, and perhaps even judges, with the risk of corruption and—ultimately—prison.

The purpose of this article is to describe that practice, discredit it, and urge its abandonment.

The practice is the mediator swearing to a so-called Fairness Declaration in connection with the parties’ seeking court approval of a proposed class action settlement.

It apparently is customary in class actions for some courts to invite a declaration from the mediator on a proposed settlement’s fairness, and for some mediators to submit one if all counsel agree. Some mediators say that marketplace reality dictates that, if a mediator balks, it is likely he or she will no longer be requested to serve on these remunerative cases.

Fairness Declarations are irrelevant. Worse, they place us all on the road to corruption. Lawyers should never request them, mediators should never provide them, and, most important, courts should never invite them and should always strike them from consideration