Mediator Liability in Dispute Resolution

Mediation is an effective means of resolving disputes without resorting to traditional litigation. Many courts are beginning to mandate mediation as a pre-trial procedure.
 
In the United States, the state of Florida has become a forerunner in implementing mediation to relieve the court system. In Florida, almost all lawsuits are required to be mediated before they can be scheduled onto a trial calendar. Approximately 75 percent of all cases are effectively resolved through mediation in Florida, meaning they never reach the courts. This saves time and money for both the state, and the parties involved in the dispute.

Mediator Liability: A Burgeoning Concern

Although there have been very few cases to date of mediator liability, with the use of mediation on the rise, it has become a more prominent issue in contemporary practice.
 
The best means of avoiding liability issues as a mediator is to receive proper training, especially if a case is legally binding. Taking on such a case without the correct knowledge or skills is unfair to the parties involved in the dispute and puts the mediator at a high risk for liability claims.

Importance of Mediator's and Client's Opening Statements

The first step essential to helping prevent liabilities from occurring during mediation is a clear introduction or opening statement by the mediator.

A mediator's opening statement should make clear the mediator's role and boundaries in order to avoid confusion later on. For instance, it's important to establish trust with both parties. The mediator should clearly state his or her own commitment to confidentiality and neutrality and remind parties that the mediator's role is not to take sides but to facilitate discussion and agreement.

The mediator's introduction can also set the tone for the proceedings and encourage a non-adversarial discussion between the parties.

Similarly, a clear opening statement made by each client is extremely important in helping to root out problems before they occur. The client should make known his perspective on the situation, as well as his goals and expectations for the mediation process. By doing so, the client can help the mediator evaluate whether everyone understands the mediation process. This helps to prevent potential liabilities that might arise later on if a client claims to have been misled by the mediator or uninformed about the mediation process.

Types of Mediator Liability

On the most basic level, a mediator is subject to liability if he or she has failed to fulfill a recognized responsibility to a party and has thereby caused the party harm.

A mediator can incur the following types of liability:

  • liability for breach of fiduciary duties:This liability occurs when the mediator forms a relationship with a client that is perceived to be something other than completely neutral. The mediator is expected to maintain neutrality at all times.

  • liability in contract: This liability arises when the mediator breaches a contract with one or more of the parties involved. This can be a breach of either written or verbal contracts.

  • liability in tort: This liability results when a mediator has influenced, defamed or broken confidentiality with a party. Liability in tort is also invoked when the mediator has been negligent in some way. The client must prove that the mediator has caused harm by his or her actions in order to be awarded damages for liability in tort.
With the use of mediation on the rise, it's especially important that mediators are well trained and educated about their roles in order to avoid liabilities. In certain cases, a mediator will even choose to carry liability insurance. Most mediators who are trained lawyers will be protected under professional liability insurance programs.
 
Resources
 
Berman, Lee Jay (2006). The Advocate's Opening. Retrieved March 13, 2008, from the Mediation Tools Web site.
 
Brannigan, Colm (1998). Professional Liability of Mediators: an Overview. Retrieved March 13, 2008, from the Mediate.ca Web site.
 
Bristow, David and Parke, Jesmond (2000). The Gathering Storm of Mediator & Arbitrator Liability. Retrieved March 13, 2008, from the bnet Business Network Web site.