I wonder whether anyone noticed the mention of mediation last week during oral arguments before the Supreme Court in the case of Kindred Nursing Centers v. Clark.  The question in this case is whether the FAA preempts a state-law contract rule (here, Kentucky’s rule) that singles out arbitration by requiring a power of attorney to expressly refer to arbitration agreements before the attorney-in-fact can bind her principal to an arbitration agreement.

It doesn’t seem as though this question would give rise to any mention of mediation.  Not so.  According to Professor Ronald Mann, reporting for SCOTUSBLOG on the oral argument, several justices asked questions demonstrating a “widely shared skepticism that the Kentucky opinion could be read as an evenhanded treatment of arbitration[,]” and Justice Breyer in particular posed hypotheticals that required Clark’s attorney to compare Kentucky’s treatment of arbitration with its treatment of other dispute resolution procedures.  According to Professor Mann:

He [Justice Breyer] pressed two of his typically extended hypotheticals. The first one asked whether a contract that granted an attorney the right to litigate a dispute would include the right to seek a bench trial or mediation, both of which would involve a waiver of the right to a jury trial. When Salyer [Clarks’ attorney] answered that the attorney’s authorization would include a right to make those strategic decisions, Breyer responded pointedly: “I will tell you in my opinion right now you have discriminated against arbitration.”

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