Non-Mutual Offensive Collateral Estoppel Could Not Be Applied By Plaintiffs to Void Arbitration Agreements
Is the Ninth Circuit Ruling Fair?
Nurses sued Aya Healthcare for wage violations. Each nurse had signed an individual arbitration agreement. Four disputes went to separate arbitrations; two arbitrators upheld the agreements, two struck them down as unconscionable. The district court applied non-mutual offensive collateral estoppel — using the two invalidating awards to void 255 other arbitration agreements, without sending those to arbitration. The Ninth Circuit reversed, holding the FAA prohibits this approach. O’Dell, et al. v. Aya Healthcare Services, Inc., No. 25-1528 (9th Cir. 4/1/26) (Tallman, VanDyke, Tung).
Non-mutual offensive collateral estoppel, when it does apply, enables a plaintiff to use collateral estoppel as a sword rather than a shield, applying a helpful outcome from a case in which the plaintiff was not a party to the benefit of the new plaintiff. It is a form of issue preclusion used to avoid relitigating an issue. But unlike classical issue preclusion, it is not mutual because it is used by a party who was not part of the initial litigation, and it is offensive rather than defensive.
At first blush, the outcome seems unjust, because a fundamental principle of justice is that like cases should be decided alike. But here, fairness cuts both ways.
The parties’ consent to arbitrate is a fairness principle, if one can put out of mind the adhesive nature of many employment contracts. Also, two of the four arbitrations accepted the defendant’s position, and one can see a lack of symmetry if issue preclusion were only to be invoked by the plaintiffs here.Â
Text-to-Voice Capability Has Been Added To This Blog
We’ve added text-to-voice capability to this website. That means that by clicking on a heading, you should be able to hear the text read out loud. Please let me know if this feature does not work for you. From time to time we will remind readers of this text-to-voice capacity that we added with a plugin.
The Use Of AI Consumer Subscriptions May Compromise Confidentiality
We Published An Article About This In The Daily Journal.
A federal judge in the Southern District of New York has ruled that a client’s legal research using his subscription to an AI platform was not protected by attorney-client privilege, nor by the work-product protection. The client was not an attorney, and the research was not conducted at the direction or behest of the attorney. And the AI program was not an attorney. When a client gives his attorney information that is not protected by attorney-client privilege or work-production protection, it does not convert non-confidential information into confidential information.
We thought that at a time when everyone is turning to AI in order to become their own expert, the confidentiality issue would be of interest to attorneys, mediators, arbitrators, and clients. We are making a copy of our article available here.
Mediation Ethics — An AI Inquiry
An Inquiry Into Mediator Ethics With The Help Of AI
We published an inquiry into mediation ethics with the assistance of AI in 2025 in the last issue of California Litigation, the journal of the Litigation Section of the California Lawyers Association. With the permission of the journal and the CLA, it is republished here and available by inserting the following link in your browser: https://calmediation.org/an-ai-inquiry-into-mediator-ethics-docx-1-1
ABA Opinion 518 Aims To Guide Mediators On Avoiding Misleading Communications
How Might ABA Opinion 518 Impact California Mediation Practice?
The ABA Standing Committee on Ethics and Professional Responsibility issued Opinion 518 on October 15, 2025 to provide guidance on avoiding misleading communication by mediators. The Opinion distinguishes the mediator’s and advocate’s roles. Attorneys in negotiations puff all the time. Under Opinion 518, mediators are not supposed to puff, make misleading statements, or give a party legal advice as to what is in their best interest. That’s the way we read the Opinion.
Lawyer-mediators must avoid misleading communications because parties reasonably view neutrals as truthful, authoritative figures. The opinion emphasizes disclosure, role clarity, and constraints on evaluative persuasion.
COMMENT. California mediators are often evaluative. The line between evaluating, which is legitimate under Opinion 518, and offering legal advice and a suggestion as to what is in a party’s best interest is often blurred. Under Opinion 518, does a mediator say to a party: “Have you considered whether this move is in your best interest?” rather than, “It is in your best interest . . .” Does the first framing pass muster, while the second does not? What persuasive strategic moves are proper to take under Opinion 518? Can mediators poke but not pull?
Does the confidentiality protection California law provides to the mediation process de facto shield a mediator from liability if the mediator puffs, makes a strategic misrepresentation, or offers legal advice?
And what can the mediator, who is not a lawyer, say in mediation?
Perhaps by the time California has its mediation certification program, we’ll all get to study the implications of ABA Opinion 518.