January 8, 2014
A court can lead the parties to mediation, but can’t make them drink. We reported last month that, after oral argument, the Ninth Circuit had suspended its consideration of the Bergmann case so that the parties could pursue court-sponsored mediation. Apparently, that effort never got off the ground. Yesterday, the Ninth Circuit entered a new order: “We previously withdrew submission pending an opportunity for mediation. Because mediation has not resolved this appeal, the case is ordered resubmitted as of the date of this order.” The Court will now proceed to write an opinion and issue its decision in due course. When that happens, one of the parties likely will be sorry that it wasn’t more flexible with the mediation process and the other will feel vindicated.