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147
SUING MEDIATORS
MICHAEL MOFFITT
*
I
NTRODUCTION ............................................................................................... 148
I. S
UING A MEDIATOR SUCCESSFULLY IS DIFFICULT.............................. 149
A. Few Mediators Have Been Sued for Their Mediation Conduct... 150
B. Liability is Hard to Establish....................................................... 153
1. Malpractice and Professional Negligence Standards are
Difficult to Meet.................................................................... 153
2. Other Tort-Based Actions Pose Similar Challenges.............. 159
3. Contracts Provide Little Basis for a Claim............................ 163
4. Fiduciary Duties do not Regularly Attach to Mediators........ 167
5. Non-Mediation Professional Standards Govern Only
Narrow Aspects of Mediation Practice.................................. 169
6. Access to Mediation Information is Limited......................... 172
7. Immunity Sometimes Extends to Mediators ......................... 173
C. Damages are Often Difficult to Demonstrate.............................. 175
1. Non-Settlement as Injury....................................................... 176
2. Unfavorable Settlement Terms as Injury............................... 178
3. Settlement Terms Injuring Non-Parties................................. 180
4. Injuries not Reflected in the Mediation Outcome.................. 182
II. M
EDIATORS’ LIMITED AND UNCERTAIN EXPOSURE TO LIABILITY
COMES WITH COSTS ............................................................................ 183
A. Compensation to Victims is Often Unavailable........................... 183
B. The Boundaries of Mediation Practice Remain Poorly
Articulated................................................................................... 184
C. The Public Learns Little About Current Practices ...................... 187
III. M
EDIATION IS A UNIQUE PRACTICE, DEMANDING UNIQUE
LIABILITY TREATMENT ....................................................................... 188
A. Mediation Parties are Best Able to Assess the Effectiveness of
Mediators’ Actions ...................................................................... 188
B. Dissatisfied Mediation Parties can Vote With Their Feet ........... 190
C. Four Different Mediation Scenarios Demand Different
Liability Treatment ...................................................................... 193
*
Assistant Professor, University of Oregon School of Law. I am indebted to Professors
Joan Malmud and Scott Peppet for their thoughtful comments on earlier drafts of this
Article. I received outstanding research assistance from Tenielle Fordyce-Ruff, Mark
Jefferis, Jeffrey Johnson, Jenifer Lassell, Zack Mittge, and Kevin Thwing. I also gratefully
acknowledge the support I received from the Hewlett Foundation while I conducted initial
research as a Senior Research Fellow at Harvard Law School.
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1. A Custom-Based Claim When the Party Walked.................. 195
2. A Custom-Independent Claim When the Party Withdrew .... 195
3. A Custom-Based Claim When the Party Remained in the
Mediation............................................................................... 196
4. A Custom-Independent Claim When the Party Remained
in the Mediation..................................................................... 197
D. Custom-Independent Claims Against Mediators Should not be
Dismissed as Duplicative of Malpractice Claims........................ 198
E. Mediators Should Enjoy no Immunity Shield Against Custom-
Independent Claims..................................................................... 200
C
ONCLUSION................................................................................................... 206
INTRODUCTION
As the use of mediation explodes in popularity, assuring the quality of
mediation services has become an increasingly visible challenge. Most
occupations and professions have credentialing or other barriers to entry into
practice, statutory or regulatory restrictions on practice methods, and oversight
of some sort. In addition to these structural methods of assuring quality
services, most service providers operate under the potential threat of private
legal actions brought by dissatisfied clients. In contrast, mediation operates
with few, if any, formal structures for assuring the quality of mediation
services.
In the absence of formal quality control mechanisms, private lawsuits offer a
theoretical vehicle for controlling mediators’ practices. In reality, however, it
is extraordinarily difficult to sue a mediator successfully for her
1
mediation
conduct. As an empirical matter, few former clients have sued mediators for
injuries stemming from mediation-specific conduct, and none of those suits has
resulted in an enforced legal judgment for the former client. A number of
factors may contribute to the infrequency with which parties resort to lawsuits
against mediators. The most significant barrier, described in Part I of this
Article, stems from the current legal theories applicable to mediators’
practices.
Part II describes the costs imposed by the uncertain and difficult legal
hurdles facing prospective plaintiffs in lawsuits against mediators. Legal
hurdles preclude recovery in many cases, leaving parties uncompensated for
injuries caused by mediators’ conduct. Furthermore, mediator misconduct
remains essentially undeterred absent any recourse for substandard behavior.
Because there are few lawsuits, the public has few occasions to learn about
current mediator practices. Absent public dissatisfaction with the current state
of practice, changes to the current statutory, regulatory, and judicial treatment
of mediator conduct are unlikely.
1
As a convention for handling gendered pronouns, throughout this Article I refer to
mediators in the feminine and mediation parties in the masculine. By assigning arbitrary but
consistent genders to each of the actors relevant to this Article’s topic, I intend to add clarity
without suggesting gender-related assumptions.
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Several unique aspects of mediation suggest that mediators’ exposure to
liability should be crafted differently from that of other service providers.
Because mediation parties have extraordinary insight into mediation practices,
they are the best judges of mediator conduct. Mediation parties also have the
ability to terminate mediation services they deem inadequate. An appropriate
liability regime would consider each of these factors. Furthermore, the fluid
nature of mediation practice—both at the individual level and in the broader
field of mediators generally—demands that a responsible liability system
distinguish between accusations that a mediator breached a customary duty of
care, and accusations that a mediator breached a duty articulated beyond
custom. Part III of this Article surveys some of these unique aspects of
mediation practice and suggests a different conception of liability for mediator
misconduct.
I. S
UING A MEDIATOR SUCCESSFULLY IS DIFFICULT
Mediators enjoy no special immunity from lawsuits unrelated to their work.
A mediator who runs over a pedestrian faces the same legal exposure as any
other driver. A mediator who breaches a contract to buy widgets is treated no
differently under the law than any other purchaser. When a mediator acts as a
private citizen, she is treated like any other citizen. Finding legal relief is
considerably more difficult, however, for a disputant who believes he was
injured by a mediator’s conduct as a mediator.
Mediators make decisions about a host of issues during the course of a
mediation.
2
Who should be in the room? How should sessions be structured?
What questions should be explored? In what order? What ideas, opinions, or
advice should be given? By whom? What deadlines should apply? Mediators
face these and many other issues as they work. As a result, one can with little
imagination construct an array of mediator behaviors that could raise
legitimate concerns. A mediator in a private caucus gives the parties
fabricated, conflicting information, inducing a settlement. Part-way through a
mediation, a mediator secretly buys stock in the defendant’s corporation. A
mediator adopts an untested, and ultimately unsuccessful, agenda management
technique and refuses to adapt her approach to the needs of the parties. A
mediator discloses a party’s confidential information to the media. A mediator
drifts into a lengthy catnap as a party attempts to recount the circumstances
2
Mediators’ conduct before or after a mediation may also create a cause of action.
Before a mediation, a mediator who falsely portrays her experience in order to procure
clients, or who fails to disclose conflicts of interest, may create grounds upon which parties
can sue. Similarly, following a mediation, a mediator who breaches confidentiality may
face liability. The theories underlying each of these actions are more fully described below
in the context of inappropriate mediator conduct occurring during the mediation itself.
While most of the examples in this Article are of mediator misconduct occurring during a
mediation, I intend for this Article’s analysis to apply equally to pre- and post-mediation
conduct.
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underlying the dispute. A mediator berates and humiliates one party in front of
the other parties. In theory, a mediator who makes bad decisions during the
mediation creates the grounds upon which the injured parties may sue. In
practice, however, very few mediator behaviors create exposure to liability.
A. Few Mediators Have Been Sued for Their Mediation Conduct
As an empirical matter, mediators have enjoyed almost absolute freedom
from lawsuits alleging injury stemming from mediation conduct. Reported
cases in U.S. federal courts,
3
in U.S. state courts,
4
and in the court systems of
Canada,
5
Britain,
6
Australia
7
and New Zealand
8
include only one case in which
a mediator was found liable to a party for mediation conduct.
9
In the Missouri
case of Lange v. Marshall,
10
the defendant mediator successfully appealed the
jury award, and the judgment was reversed.
11
As a result, no cases exist in the
3
A search of the Westlaw and Lexis-Nexis databases on May 13, 2002 yielded no
reported cases.
4
A search of the Westlaw and Lexis-Nexis databases on May 13, 2002 yielded no
reported cases.
5
See Jennifer Schulz, Mediator Liability in Canada: An Examination of Emerging
American and Canadian Jurisprudence, 32 OTTAWA L. REV. 269, 271 (2000-2001) (noting
that suits against mediators in Canada are almost non-existent). A Westlaw search on May
14, 2002 yielded no reported cases.
6
See LAURENCE BOULLE & MIRYANA NESIC, MEDIATION: PRINCIPLES PROCESS PRACTICE
512 (2001) (indicating that no proceedings had been brought against mediators in the United
Kingdom, either because of the relative novelty of formal mediation or because of
protection from liability for mediators). A Westlaw search on May 14, 2002 yielded no
reported cases.
7
See Andrew Lynch, “Can I Sue My Mediator?”—Finding the Key to Mediator
Liability, 6 AUSTL. DISP. RESOL. J. 113, 113 (1995) (suggesting that the very nature of
mediation precludes mediator liability). A Westlaw search on May 14, 2002 yielded no
reported cases.
8
A Westlaw search on May 14, 2002 and a Lexis-Nexis search on July 8, 2002 yielded
no reference to liable mediators in the secondary literature or reported cases.
9
At least one mediator has been charged with the unauthorized practice of law (“UPL”).
In Werle v. R.I. Bar Ass’n, 755 F.2d 195 (1st Cir. 1985), a psychologist offering divorce
mediation services sued the state bar association because it sent him a letter requesting that
he cease and desist practicing law without a license. I discuss UPL in Part I.B.5. Absent
any claim of malpractice, however, even a successful accusation of UPL would not
constitute an example of a mediation party recovering from a mediator for her misconduct in
a mediation. Bar associations, not clients, bring UPL actions, and the remedies are typically
injunctive or criminal, rather than civil payments to parties.
10
622 S.W.2d 237, 239 (Mo. Ct. App. 1981).
11
The Missouri Court of Appeals held that the party suing her attorney-mediator in
Lange failed to establish that she suffered any damages proximately caused by the attorney-
mediator’s alleged negligence. The defendant asserted that his actions did not constitute
negligence because, as a mediator rather than as an attorney, he owed no duty to perform the
tasks the plaintiff claimed he negligently failed to perform. The Court of Appeals
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official reporters in which a mediator ultimately paid a former client for
injuries the mediator caused during a mediation. Official reporters, of course,
capture only a fraction of lawsuits, and it is possible that there have been
instances of unreported, successful cases against mediators. However,
mediation association newsletters, academic journals, and on-line resources
reveal no such cases.
12
Even malpractice insurers, who do an apparently
healthy business providing insurance to mediators annually, report very few
claims against those policies. In a series of telephone interviews, mediator
liability insurance providers reported no more than a handful of claims in any
year.
13
Whatever ire former clients may hold toward their mediators is
apparently not being expressed in the form of lawsuits.
The lack of successful suits against mediators, however, does not mean that
mediators never injure their clients through substandard mediation practices.
Mediation occurs in an extraordinary variety of legal and social contexts, and
consumers of the process are equally varied. Furthermore, few quality control
mechanisms exist to deter substandard practices. There are no licensure
systems, no stringent barriers to entry into the practice, and little public insight
into the mediation process. It is folly to believe that out of the millions of
decisions mediation practitioners across the country make each year, none of
them constitutes injurious conduct. We must assume that some mediators are
making mistakes.
If mediators are making mistakes, why are no injured mediation parties
bringing lawsuits against their mediators? One possible contributing factor,
suggested by the general literature on agency,
14
is the possibility of
information asymmetry between mediators and their clients. Mediators may
specifically declined to resolve the precise nature of the defendant’s duties in its opinion,
resolving the matter on the issue of proximate causation instead. Id. at 238.
12
See, e.g., CR Info, http://www.crinfo.org (accessed Oct. 15, 2002); Mediate.com,
http://www.mediate.com (accessed Oct. 15, 2002); Association for Conflict Resolution,
http://www.acresolution.org (accessed Oct. 15, 2002); Journal Storage, http://www.jstor.org
(accessed Oct. 15, 2002); University of Oregon Libraries, http://libweb.uoregon.edu/
network/fulltext.html (Academic Search Elite) (accessed Oct. 15, 2002); California Dispute
Resolution Council, http://www.cdrc.net (accessed Oct. 15, 2002).
13
Telephone and E-mail Interviews with Betsy Thomas, Broker, Complete Equity
Markets (May 22, May 30, and July 8, 2002). Jeffrey Johnson and Tenielle Fordyce-Ruff
conducted these interviews under my direction. It is not clear that any of the claims in
question would have resulted in a finding of liability at trial. The findings of this research
are consistent with Kimberlee Kovach’s interviews almost ten years ago. See K
IMBERLEE K.
KOVACH, MEDIATION: PRINCIPLES AND PRACTICE 219 (1993) (finding that at the end of 1993
an average of five cases per year were filed against mediators).
14
For a comprehensive treatment of the foundational principles of principal-agent
dynamics, see John W. Pratt & Richard J. Zeckhauser,
Principles and Agents: An Overview,
in P
RINCIPALS AND AGENTS: THE STRUCTURE OF BUSINESS 1, 4-8 (John W. Pratt & Richard J.
Zeckhauser eds.,
1985) (discussing how information asymmetry is moderated in a market
economy).
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hold some specialized knowledge about mediation practice that is inaccessible
to disputants. If this specialized knowledge translates into circumstances in
which parties do not know why or what their mediators are doing,
15
it would
follow that parties may not know that a mediator has engaged in an injurious
practice. Absent a known harmful act, of course disputants will not think to
pursue a legal action against their mediator.
A shared disposition toward settlement may provide a component
explanation for the low incidence of litigation against mediators. The vast
majority of legal complaints result in settlements, rather than litigation.
16
Disputants who sought non-adjudicative means of resolving their initial dispute
might similarly favor a non-adjudicative resolution of a dispute involving the
mediator. Disputes resolved before they reach the legal system are impossible
to track with certainty. Therefore, any inclination of mediation parties towards
out of court settlements could reduce the number of cases appearing in any
search for lawsuits against mediators. Furthermore, mediators themselves may
be inclined to settle complaints from former clients, rather than litigate those
complaints. A mediator’s professional inclination toward settlement, coupled
with the high risks associated with being “the first one on the professional
block to be sued,”
17
may make some mediators willing to settle cases, even at a
premium. The pro-settlement inclinations of both parties and mediators may at
least partially explain the rarity of litigation against mediators.
Neither of these explanations, however, sufficiently explains the nearly
complete lack of lawsuits against mediators. Even if some incidents of
mediator malpractice were invisible to clients, mediator malpractice is not
utterly impossible to detect. Just as lawyers and doctors will occasionally
make unfortunate decisions with profoundly visible impacts, so too must
mediators sometimes make gargantuan mistakes. In those cases, even
information asymmetry would not deter all lawsuits. Furthermore, mediation
parties’ access to information regarding mediator conduct is less asymmetric
than clients’ access to relevant information in most professional-client
relationships. As a result, information asymmetry is inadequate to explain
fully the lack of lawsuits against mediators. Similarly, even if some mediation
parties have a predisposition against following cases through to litigation, all
15
In a separate article, I suggested that mediators should make significant portions of
their conduct more transparent, thereby increasing the parties’ insight into mediator
practices. See Michael Moffitt, Casting Light on the Black Box of Mediation: Should
Mediators Make Their Conduct More Transparent?, 13 O
HIO ST. J. ON DISP. RESOL. 1, 49
(1997).
16
ALAN SCOTT RAU ET AL., PROCESSES OF DISPUTE RESOLUTION: THE ROLE OF LAWYERS
13-15 (3d ed. 2002) (surveying a range of studies indicating litigation rates ranging from
three to twenty-five percent, depending on the study and the subject matter of the dispute);
Andrea Kupfer Schneider, Shattering Negotiation Myths: Empirical Evidence on the
Effectiveness of Negotiation Style, 7 H
ARV. NEGOT. L. REV. 143, 147 (2002) (noting a pre-
litigation settlement rate of ninety-five percent).
17
I am indebted to Scott Peppet for calling my attention to this possible dynamic.
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mediation parties are not so litigation-averse. With mandatory participation in
mediation in some jurisdictions,
18
not all mediation parties can be responsibly
described as adverse to the litigation process. There is insufficient
homogeneity among mediation consumers to support an assertion that
mediators enjoy freedom from lawsuits because mediation consumers do not,
as a rule, bring lawsuits. Similarly, not all mediation practitioners are so risk-
averse or so opposed to litigation that they would settle all claims at any cost.
Even if parties lack complete insight into mediator conduct, and even if some
disputants and mediators prefer to settle disputes prior to formal legal
resolution, the nearly complete absence of lawsuits against mediators requires
another explanation.
B. Liability is Hard to Establish
The most significant contributing factor to the lack of lawsuits against
mediators is the difficulty of succeeding on such claims. Malpractice,
professional negligence, and virtually all other tort claims are available only in
extraordinary circumstances. Mediation contracts provide few explicit bases
for claims, and none of the bases likely to be implied effectively covers
mediator behavior. Fiduciary obligations, like other theories of liability drawn
from relationships beyond mediation, have never attached to mediators. The
immunity and confidentiality shields that protect a significant number of
mediators further complicate the establishment of liability. Current legal
structures create a series of obstacles facing any dissatisfied mediation
consumer seeking to establish mediator liability.
1. Malpractice and Professional Negligence Standards are
Difficult to Meet
In theory, a mediator’s conduct may give rise to a claim of malpractice or
professional negligence. However, like any other tort claim based
fundamentally in negligence,
19
maintaining a malpractice or professional
18
See, e.g., SARAH R. COLE ET AL., 1 MEDIATION: LAW, POLICY AND PRACTICE § 7 (2d ed.
2001) (providing in depth coverage of the use of mandatory mediation as well and legal and
policy issues arising from the use of mandatory mediation); Peter S. Chantilis, Mediation
U.S.A., 26 U.
MEM. L. REV. 1031 (1996) (surveying the utilization of mediation in the
several states); Robert Rack & Nancy H. Rogers, Introduction to Symposium on the
Structure of Court-Connected Mediation Programs, 14 O
HIO ST. J. ON DISP. RESOL. 711,
712 (1999) (describing the variations in mandatory mediation mechanisms in different
jurisdictions).
19
See Ertel v. Nat’l Fire Adjustment Co., 152 F.R.D. 454, 458 (W.D.N.Y. 1993) (“[I]t is
significant to note that elements for a claim based on a theory of professional malpractice
are the same as those for traditional types of negligence actions.”); Candler Gen. Hosp., Inc.
v. McNorrill, 354 S.E.2d 872, 876 (Ga. Ct. App. 1987) (“A professional malpractice action
is merely a professional negligence action . . . .”); Michael J. Polelle, Who’s on First, and
What’s a Professional?, 33 U.S.F.
L. REV. 205, 205 (1999) (describing malpractice as being
“more accurately called professional negligence”); Theodore Silver, One Hundred Years of
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154 BOSTON UNIVERSITY LAW REVIEW [Vol. 83:147
negligence action requires, among other things,
20
that a plaintiff demonstrate
both that the mediator had a duty to conform to certain standards of conduct
and that the mediator engaged in conduct that breached those standards.
21
Neither of these elements can be satisfied easily in the context of mediator
conduct.
First, a clear standard of practice for mediators is difficult to identify.
Mediation is a fragmented occupation, with practitioners varying to a
tremendous degree in their training and methodology. While some have
argued that mediation should be treated as a profession,
22
the lack of coherence
in admission and practice standards makes the analogy imperfect at best.
23
Instead, mediators operate under a patchwork of standards, promulgated by a
range of practice associations, program administrators, and court systems. One
mediator might practice under restrictions from several sources
simultaneously,
24
while another might operate without any restrictions beyond
Harmful Error: The Historical Jurisprudence of Medical Malpractice, 1992 WIS. L. REV.
1193, 1193 (“A medical malpractice action is identical in all vital respects to any and every
suit sounding in negligence.”).
20
An action in malpractice also requires a demonstration of injury and a causal
connection between the sub-standard conduct and the injury. See 1 DAN B. DOBBS, THE
LAW OF TORTS § 242, at 631 (2001) (outlining the elements of malpractice). Part I.C below
treats these requirements in greater detail, as these elements are also difficult for unhappy
mediation parties to demonstrate to a legal sufficiency.
21
See Ertel, 152 F.R.D. at 458; Onwuteaka v. Gill, 908 S.W.2d 276, 281 (Tex. Ct. App.
1995); 65 C.J.S. Negligence § 162 (2000).
22
See, e.g., Jacqueline M. Nolan-Haley, Lawyers, Non-Lawyers and Mediation:
Rethinking the Professional Monopoly from a Problem-Solving Perspective, 7 HARV.
NEGOT. L. REV. 235, 243-45 (2002) (noting the growth of certification and licensing
requirements, practice standards, and professional organizations, as contributing to the
development of an evolving profession).
23
Regardless of whether mediation is considered a profession, a mediator will likely be
held to owe a heightened duty of care toward her clients. The fact that a mediator may not
be considered a “professional” will not generally protect her from liability for professional
negligence. See Alexander v. Culp, 705 N.E.2d. 378, 382 (Ohio Ct. App. 1997) (stating that
any professional, not exclusively licensed professionals, can be sued for professional
negligence); Nat’l Found. Co. v. Post, Buckley, Schuh & Jernigan, Inc., 465 S.E.2d 726,
729 (Ga. Ct. App. 1995) (noting that an architect owes a duty of care to third parties who
foreseeably could be harmed by a negligent design). Some jurisdictions, however, limit
malpractice claims to attorneys, physicians, licensed members of a profession, or those
professions expressly designated by statute. See Mich. Microtech, Inc. v. Federated Publ’ns,
Inc., 466 N.W.2d. 717, 721-22 (Mich. Ct. App. 1991) (holding a malpractice statute
inapplicable to journalists); 65 C.J.S. Negligence § 162 (explaining that malpractice may
include the negligence of attorneys, physicians and those expressly designated by statute,
those professing membership in a state-licensed profession, or professional or engineering
service corporations).
24
For example, a mediator might be a member of several voluntary associations, such as
ACR and a state mediation association, each of which has established a different code of
MOFFIT.DOC 2/7/2003 11:44 AM
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her specific contract to mediate.
25
In the absence of clear customary practice,
26
and with a lack of common law, statutory, or judicial articulations of
mediators’ duties,
27
a plaintiff would have a difficult time identifying a
standard against which a mediator’s behavior should be judged.
Even if professional mediation standards existed, a breach of those standards
would be difficult to establish. Unlike other practices or professions,
mediators’ decisions are often difficult to discern, much less to evaluate. If a
doctor leaves a surgical instrument inside a patient, or a lawyer fails timely to
file a brief, judging these actions as sub-standard is relatively easy. Indeed,
some instances of malpractice will be so egregious that even a person who is
conduct for mediators. The same mediator might be operating through a mediation
program, such as a community mediation program or a professional mediation outfit. Such
a program is likely to have set standards. Finally, this mediator might be conducting the
particular mediation in question through a referral source. If, for example, the mediator
were doing a court-annexed mediation, the court program may have its own rules regarding
the mediator’s conduct. Further complicating the picture is the prospect of cross-
professional practice by mediators. Mediators who are also members of a separate
profession will often face conflicting obligations according to that profession’s standards of
practice. See Michael Moffitt, Loyalty, Confidentiality and Attorney-Mediators:
Professional Responsibility in Cross-Profession Practice, 1 H
ARV. NEGOT. L. REV. 203, 211
(1996).
25
For example, a prominent community businesswoman might receive an unsolicited
call from two startup software companies engaged in a patent dispute. She might
reasonably agree to serve as a mediator in their emerging dispute without ever having
received specialized training, and without operating under any codified restrictions on her
conduct.
26
In a typical malpractice or professional negligence action, the defendant’s conduct is
compared with the customary practice of those engaged in a similar profession or practice.
See, e.g., Osborn v. Irwin Mem’l Blood Bank, 7 Cal. Rptr. 2d 101, 127 (Cal. Ct. App. 1992)
(“[P]rofessional prudence is defined by actual or accepted practice within a profession,
rather than theories about what ‘should’ have been done.”); 1 D
OBBS, supra note 20, § 242,
at 633 (“The professional standard of care is not the reasonable person standard used in
most negligence cases . . . . [T]he professional standard asks the trier only to determine
whether the defendant’s conduct conformed to the medical standard or medical custom in
the relevant community.”). But see Philip G. Peters, Jr., The Quiet Demise of Deference to
Custom: Malpractice Law at the Millennium, 57 W
ASH. & LEE L. REV. 163, 164 (2000)
(suggesting that at least in the realm of medical malpractice, courts are moving away from
custom in favor of a reasonable physician standard of care).
27
Horak v. Biris, 474 N.E.2d. 13 (Ill. App. Ct. 1985), illustrates a process by which a
court may create an affirmative duty where none was previously recognized. In Horak, the
court articulated four potential considerations in arriving at the conclusion that social
workers owe a special duty of care toward those they serve. The court noted that:
A person’s duty to act with reasonable care does not extend to the world at large, but,
rather, is defined and limited by various considerations such as the relation between the
parties, the gravity and foreseeability of the harm, the utility of the challenged conduct
and the burden of guarding against the injury.
Id. at 17.
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not a member of the profession will be able to identify the behavior as sub-
standard.
28
However, it is much more difficult to say that the decisions and
actions of a mediator fall below an accepted standard of practice.
Almost anything a mediator does during the course of a mediation might be
explained by one or more of the current, competing theories of mediation
practice. Some mediators keep the parties separated almost exclusively.
29
Others keep them together in almost every circumstance.
30
Some mediators
play an active role in structuring conversation during the mediation. Others
view such procedural decisions as part of the parties’ role.
31
A mediator who
28
In the context of legal malpractice, however, “the concept of res ipsa loquitur is not
applicable . . . . [T]he standard of care against which the attorney defendant’s conduct will
be measured must generally be established through expert testimony.” Barth v. Reagan, 564
N.E.2d 1196, 1199-1200 (Ill. 1990). Not all decisions by professionals such as lawyers will
be assessed so easily. For example, a lawyer’s decisions in exercising peremptory
challenges, in conducting a cross-examination, or in making a closing argument are all
subjective and difficult for outsiders to assess. For this reason, deferential treatment under
such rules as the “Lawyer Judgment Rule” have served to shield some discretionary
professional actions from subsequent review. See O’Brien & Assocs. v. Tim Thompson,
Inc., 653 N.E.2d 956, 962 (Ill. App. Ct. 1995) (“A mere error of judgment does not subject
an attorney to liability even if that erroneous judgment leads to an unfavorable outcome for
the client.”); Bernstein v. Oppenheim & Co., 554 N.Y.S.2d 487, 489 (N.Y. App. Div. 1990)
(holding that “an attorney is not held to the rule of infallibility and is not liable for an honest
mistake of judgment, where the proper course is open to reasonable doubt,” and that
“selection of one among several courses of action does not constitute malpractice” (internal
citations and quotations omitted)); Norman B. Arnoff et al., An Updated Primer on the Law
of Legal Malpractice in New York, in
LEGAL MALPRACTICE: TECHNIQUES TO AVOID
LIABILITY, at 195, 221 (PLI Litig. & Admin. Practice Course, Handbook Series No HO-
OO3Q, 1999) (discussing the differences between mandated tasks and the “Lawyer’s
Judgment Rule” as they relate to legal malpractice claims).
29
See, e.g., Jennifer Gerarda Brown & Ian Ayres, Economic Rationales for Mediation,
80 VA. L. REV. 323, 327-29 (1994) (presenting an economic argument for caucus-based
mediation, relying on the parties’ willingness to provide confidential information to the
mediator); Christopher W. Moore, The Caucus: Private Meetings That Promote Settlement,
16 M
EDIATION Q. 87, 88-90 (1987) (arguing in favor of the use of caucuses in mediations
generally).
30
See, e.g., JAMES J. ALFINI ET AL., MEDIATION THEORY AND PRACTICE 131 (2001)
(surveying differences among mediators on the question of caucusing); M
EDIATING LEGAL
DISPUTES § 3.2, at 68 (Dwight Golann ed., 1996) (describing the no-caucus model
frequently adopted in the family mediation context).
31
See, e.g., ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION:
RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION 195-96 (1994)
(suggesting that mediators should leave many process decisions to the disputants); COLE ET
AL
., supra note 18, § 3:2 (“Although some mediators are more aggressive than others in
suggesting outcomes, their strongest control is over the process.”); D
EBORAH KOLB ET AL.,
WHEN TALK WORKS 475 (1994) (quoting a mediator describing himself as “the orchestra
leader . . . . If they want to play in this orchestra, they’re going to have to play when I point
at them”); Moffitt, supra note 15, at 2-3 (suggesting that mediators should make process
MOFFIT.DOC 2/7/2003 11:44 AM
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decides to offer suggestions or to evaluate the merits of the disputants’ claims
is either right on track or wildly out of bounds, depending on the school of
mediation.
32
One mediator might cajole, strong-arm, threaten, argue with, beg,
or even bribe the disputants to reach a compromise.
33
Another would view
each of these as anathema to the role of a mediator.
34
In short, a mediator can
do few things that will constitute a clear breach of all conceptions of
acceptable mediator practice.
Mediation is not alone in having diverging viewpoints on appropriate
practices within the same discipline. In the medical field, for example, health
practitioners often disagree about appropriate diagnostic and treatment
approaches. However, this variation does not render all medical practitioners
effectively immune to charges of malpractice. Instead, courts hold
practitioners to whatever standard exists within their particular “school” of
health practice.
35
A chiropractor, therefore, is not judged by the standards of
decisions explicit, in part to invite parties’ autonomous judgment about the merits of the
process decisions).
32
See Leonard L. Riskin, Understanding Mediators’ Orientations, Strategies, and
Techniques: A Grid for the Perplexed, 1 HARV. NEGOT. L. REV. 7, 23-24 (1996) (describing
variation among practitioners according to a facilitative-evaluative continuum); COLE ET AL.,
supra note 18, § 3:4 (noting that “[m]ediators and mediation programs have diverse
approaches to recommending a settlement if the parties fail to reach one during the
mediation session,” and that “[m]ediators disagree on whether legal evaluation by the
mediator is appropriate”). Compare Marjorie Corman Aaron, Evaluation in Mediation, in
M
EDIATING LEGAL DISPUTES, supra note 30, § 10.3.1, at 272-74 (arguing for mediators’
occasional use of evaluation), with Kimberlee K. Kovach & Lela P. Love, “Evaluative”
Mediation is an Oxymoron, 14 ALT. TO HIGH COSTS OF LITIG. 31 (1996) (arguing for a
definitional exclusion of evaluation).
33
See ALFINI ET AL., supra note 30, at 107-48 (describing a range of mediator practices
aimed at producing settlement); MEDIATING LEGAL DISPUTES, supra note 30, § 1.1.1, at 17
(“Mediators vary greatly in how actively they are willing to intervene in a dispute.”).
Golann later suggests that mediators should adopt a flexible approach to mediating,
responding to the particular challenges of the dispute in question. Id.
34
See, e.g., BUSH & FOLGER, supra note 31, at 203-04 (arguing against mediator
involvement in the substantive outcome of the mediation in favor of party empowerment
and inter-party recognition). For a broader exploration of different practitioners’ responses
to so-called “pressure tactics,” see K
ENNETH KRESSEL ET AL., MEDIATION RESEARCH: THE
PROCESS AND EFFECTIVENESS OF THIRD-PARTY INTERVENTION 418-20 (1989) (noting that
nearly all mediators use pressure tactics to varying degrees of success).
35
Vergara v. Doan, 593 N.E.2d 185, 187 (Ind. 1992) (“[A] physician must exercise that
degree of care, skill, and proficiency exercised by reasonably careful, skillful, and prudent
practitioners in the same class to which he belongs, acting under the same or similar
circumstances.”). The so-called “two schools of medical thought” doctrine holds that a
physician’s conduct will not be considered malpractice “if the physician, in using his best
judgment, followed one of the two or more alternative treatments recognized in the
profession as acceptable.” Glenn E. Bradford & David G. Meyers, The Legal and
Regulatory Climate in the State of Missouri for Complementary and Alternative Medicine—
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an orthopedic surgeon. Instead, he or she is judged against the standard set by
the ordinarily competent chiropractor.
36
The same is true of psychotherapists
who adhere to a particular approach to therapy, whether Freudian, Client-
Centered, or Gestalt.
37
Anyone “who engages in a business, occupation, or
profession must exercise the requisite degree of learning, skill, and ability of
that calling with reasonable and ordinary care.”
38
Variation within an
occupation or profession, in most cases, merely demands judging the specific
conduct in question in comparison to those who approach the occupation or
profession using a similar underlying theory of practice.
Mediation differs from other occupations, however, because currently no
responsible set of labels for different mediator practices exists that would
permit categorization or comparative evaluation. Some scholars have
endeavored to describe some of the variations between mediation practitioners.
While these descriptions may be intellectually stimulating, they are far from
descriptively precise. For example, one common distinction drawn between
mediators distinguishes those who are considered “evaluative” from those who
describe themselves as “facilitative.”
39
At a minimum, treating evaluative and
facilitative practices as polar opposites, demanding a binary choice,
oversimplifies mediation practice. Even more troubling for the purpose of
establishing clear schools of mediation is that most responsible mediators
adapt the services they provide to the context of the dispute. Some parties, in
some circumstances, might benefit from practices which, in another context,
with other parties, would be unhelpful. Disputants’ needs drive mediator
Honest Disagreement Among Competent Physicians or Medical McCarthyism?, 70 UMKC
L. REV. 55, 75 (2001).
36
See Vergara, 593 N.E.2d at 187 (noting that the conduct of a physician facing a
malpractice claim will be measured against, among other things, the current state of
knowledge in the profession).
37
See Lawrence P. Hampton, Note, Malpractice in Psychotherapy: Is There a Relevant
Standard of Care?, 35 CASE W. RES. L. REV. 251, 271-72 (1984-1985) (indicating that
traditional psychoanalysis and client-centered therapy as well as newer Gestalt therapy are
accepted psychotherapeutic “schools of thought”).
38
57A AM. JUR. 2D Negligence § 190 (1989); see also 1 DOBBS, supra note 20, § 242, at
631-32 (explaining that physicians implicitly agree to act with at least the normal “skill,
knowledge and care . . . exercised by other members of their profession”).
39
In wooden terms, an evaluative mediator provides the parties with her assessment of
the likely treatment the case in question would receive in court, while a facilitative mediator
focuses instead on helping the parties to communicate. The distinction is surely not as
simple as this footnote suggests, and countless pages have been spent among mediation
scholars engaging in descriptive and normative debates about this distinction. See, e.g.,
A
LFINI ET AL., supra note 30, at 170-92 (comparing the facilitative and evaluative
approaches to mediation); Aaron,
supra note 32, § 10, at 267-305 (discussing the proper
place for evaluation in mediation); Kimberlee K. Kovach & Lela P. Love, Mapping
Mediation: The Risks of Riskin’s Grid, 3 HARV. NEGOT. L. REV. 71, 71-75 (1998)
(challenging Professor Riskin’s grid, which outlines the mediation universe along an
evaluative-facilitative continuum and a narrow-broad problem definition continuum).
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practices, making mediator practices difficult to pin down with any certainty.
Many experienced, thoughtful mediators would be hard pressed to name any
approach they would always or never adopt. The same mediator may even
vary her practices in mid-stream, apparently jumping from one “school” to
another, during a mediation.
40
Efforts to categorize mediators into clear,
consistent practices has yielded little consensus.
Given the lack of clear standards of practice and the difficulty of proving
any mediator behavior substandard, it would be exceptional if a plaintiff were
able to use a malpractice or professional negligence claim to establish liability.
2. Other Tort-Based Actions Pose Similar Challenges
Beyond malpractice or simple negligence, a dissatisfied party could
theoretically bring a number of tort claims against a mediator. Intentional
infliction of emotional distress, false imprisonment, tortious interference with
contractual relations and invasion of privacy each provide a possible basis for
recovery from a mediator. In practice, however, none of these exposes most
practicing mediators to sweeping liability.
In an egregious set of circumstances, a mediator could conceivably be held
liable for intentionally inflicting emotional distress on one of the parties.
However, an action under intentional infliction of emotional distress requires
that “the defendant cause[d] severe emotional distress, intentionally or
recklessly, by extreme and outrageous conduct.”
41
The aggressive approach
some mediators adopt in challenging parties’ perceptions and assessments
would not come near to satisfying the requirements for demonstrating tortious
infliction of emotional distress. Howard v. Drapkin
42
involved an allegation of
intentional infliction of emotional distress in a context somewhat analogous to
mediation. In that case, a divorcing couple hired Robin Drapkin, a
psychologist, to assess the circumstances underlying a custody and visitation
dispute. Pursuant to her agreement with the couple, Drapkin conducted her
40
For example, Marjorie Corman Aaron has suggested that mediators turn to evaluation
only after having tried “to address every other major barrier” to settlement, including
“emotion, communication, imbalance of information, [and] differing negotiation styles.”
Aaron, supra note 32, § 10.2, at 272. A simple characterization of Aaron’s mediation style
would therefore label her as “evaluative,” when in fact, in many mediations, she would
presumably find no need to engage in evaluation at all. Aaron’s is a dynamic, and in my
view, very thoughtful vision of mediation.
41
2 DOBBS, supra note 20, § 303, at 826 (enumeration omitted) (including outrageous
conduct as an element of intentional infliction of emotional harm); see also 86 C.J.S. Torts §
69 (1997) (“A claim for intentional infliction of emotional distress arises when one by
extreme and outrageous conduct intentionally or recklessly causes severe emotional distress
to another.”); W.
PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 12, at
60 (5th ed. 1984) (“[T]here is liability for conduct exceeding all bounds usually tolerated by
decent society, of a nature which is especially calculated to cause, and does cause, mental
distress of a very serious kind.”).
42
271 Cal. Rptr. 893 (Cal. Ct. App. 1990).
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investigation and produced a report and recommendation. Vickie Howard, one
of the divorcing parents, subsequently sued Drapkin, alleging intentional
infliction of emotional distress. According to Howard, during the one-session
investigation, Drapkin “personally attacked plaintiff, screamed at her, ridiculed
her, accused her of lying and fabricating evidence, threatened she would lose
custody of her son if she persisted in believing his allegations about his father,
and misrepresented that the child’s doctors and other experts involved in the
case did not believe the child had been abused.”
43
The complaint was
dismissed on summary judgment, without a determination of the merits of the
intentional infliction of emotional distress claim, because the court accorded a
form of immunity to Drapkin. Even if the claim had proceeded, the fact that
Drapkin’s assessment, like most mediations, was voluntary, would have made
the assertion difficult to maintain. An utterance from an outside party without
the capacity to impose a resolution would rarely be so injurious as to cause
cognizable emotional distress, particularly in the context of a mediation. The
fact that a party can leave a mediation at any point makes it likely that only the
most extraordinarily egregious examples of mediator misconduct will subject a
mediator to liability under a theory of intentional infliction of emotional
distress.
False imprisonment, like intentional infliction of emotional distress,
represents a potential ground for recovery to an injured mediation party that
could be applicable in outrageous circumstances. In practice, however, a
mediator’s behavior will seldom, if ever, satisfy the requirements of false
imprisonment. False imprisonment applies only if a defendant unlawfully
restrained the plaintiff’s voluntary movement by means of force, threat of
force, physical barrier or assertion of legal authority.
44
A popular image of
mediating may include locking the parties in a room and refusing to let them
out until they have reached an agreement. If the mediator actually locked the
parties in a confined space against their will, then the tort of false
imprisonment might be available.
45
Even among mediators who might
subscribe to such a theory, however, the “locking” in question is almost never
literal. Instead, the parties’ unfavorable assessments of the prospects of non-
43
Id. at 895.
44
See RESTATEMENT (SECOND) OF TORTS §§ 38-41 (1965) (discussing the tort of false
imprisonment); 1 D
OBBS, supra note 20, §§ 36-37, at 67-72 (same).
45
False imprisonment requires that the confinement be against the will of the person
confined. Consent raises potential issues regarding the prospect of mediation parties
making an Odysseus-like pre-commitment to a particular mediation strategy, such as the
imposition of a strict and unchangeable deadline. In lieu of consenting to be lashed to a
mast, mediation parties conceivably could consent to an arrangement that would prevent
them from terminating a mediation for a specified period of time. Such an exercise of
autonomy would preclude a subsequent claim of false imprisonment, assuming that the
mediator “bound” them to the mediation for no longer than they had originally consented to
be bound. Cf. H
OMER, THE ODYSSEY 180-85 (E.V. Rieu trans., Penguin Books 1991)
(1946).
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settlement are what keep them at the table. While false imprisonment does not
require physical confinement, it does require a threat to a legally protected
interest. Threats to a speculative interest in receiving a favorable settlement of
a legal dispute fall outside the scope of actions proscribed by the tort of false
imprisonment.
46
Furthermore, unless the mediator somehow persuasively
mischaracterizes the basic voluntary nature of mediation, the fact that a party
may simply end a mediation or refuse to agree to a proposed settlement makes
the tort essentially unavailable to parties complaining of a mediator’s efforts at
persuasion.
Outside the realm of outrageous conduct, an aggrieved mediation party
could assert that a mediator tortiously interfered with his contractual rights or
economic opportunity. As a simple illustration, in a mediation between a
plaintiff and a defendant, the plaintiff, as the aggrieved party, would claim that
the mediator’s actions wrongfully caused injury to the plaintiff’s contractual
rights with respect to the defendant. To prove the tort of interference with
contractual relations, the injured plaintiff would have to show that the mediator
intentionally and wrongfully interfered with the plaintiff’s contractual rights.
47
Demonstrating intent, as opposed to simple negligence, in a mediation would
be difficult, to say the least.
48
Even more challenging is the requirement that
the mediator’s acts or omissions cause a loss of contractual rights or a decrease
in the value of the contract to the injured party. Mediations generally take
place in a context in which no contractual relation between the parties exists.
Indeed, one purpose of the mediation may be to explore whether the parties
can enter into a contract whose terms would resolve the dispute that brought
them to mediation in the first place. In the absence of an existing contract, a
mediator could at most be liable for interference with a party’s economic
46
Cf. 1 DOBBS, supra note 20, § 37, at 69-72 (describing the methods of confinement
considered false imprisonment).
47
See id. § 446, at 1259-60 (naming as elements of interference with contract or
economic opportunities “(1) the existence of a contract (or economic opportunity) involving
the plaintiff and another, (2) the defendant’s knowledge of it, (3) the defendant’s malicious,
improper, or intentional interference with it, (4) breach of the contract or other legally
cognizable disruption of economic opportunity, and (5) resulting damage to the plaintiff”).
48
There is some ambiguity about the precise parameters of the intent requirement in the
mediation context. The tort of intentional interference with performance of contract by a
third person can be brought even if the mediator did not specifically intend to interfere with
the contractual relationship in question, for the tort applies to circumstances,
in which the actor does not act for the purpose of interfering with the contract or desire
it but knows that the interference is certain or substantially certain to occur as a result
of his action. The rule applies, in other words, to an interference that is incidental to
the actor’s independent purpose and desire but known to him to be a necessary
consequence of his action.
R
ESTATEMENT (SECOND) OF TORTS § 766 cmt. j (1965); cf. 2 DOBBS, supra note 20, § 446, at
1259 (“[N]egligently caused economic harm is generally not actionable.”).
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opportunity or prospective advantage.
49
Tort liability for interference with
economic opportunity protects against injuries to expectancies such as the
benefits one anticipates receiving from a contractual relation. The hurdles to
establishing intent for interference with economic opportunity, however, are at
least as difficult as those for interference with contractual relations.
50
Furthermore, the very nature of expectancies is speculative. What terms would
the parties have agreed to if the mediator had not made a particular
intervention? Unless the mediator made a deal-breaking intervention just as
the parties were standing, pens in hand, ready to sign a prepared contract, to
say what would have happened in a mediation would be extremely speculative.
Therefore, while tortious interference with prospective contractual advantage is
theoretically available to aggrieved mediation parties, only a narrow set of
mediation circumstances would actually support such a claim.
Finally, the tort of invasion of privacy could conceivably expose mediators
to liability. If a mediator breached confidentiality in a particular set of
circumstances, a privacy action may be available to injured parties.
51
Since the
emergence of privacy as a basis for tort in the late nineteenth century, courts in
various jurisdictions have recognized several different forms of invasion of
privacy.
52
The most obviously relevant form regards the disclosure of private
information.
53
Though it is not a uniformly adopted tort,
54
public disclosure of
private information may present an opportunity for an aggrieved mediation
party. Privacy actions generally require a public disclosure of private
information that “would be highly offensive” and objectionable to a reasonable
49
See 2 DOBBS, supra note 20, § 450, at 1275 (noting that interference with economic
opportunity does not require interference “with an existing and enforceable contract but
merely with the plaintiff’s probable economic advantage, such as a likely prospect of selling
goods to a buyer who was willing to purchase,” and that “[t]he plaintiff need not have a
prospect of obtaining a contract; it is enough if she has a probable prospect of economic
gain”).
50
A potential exception would be if a court held the mediator to owe a special duty to the
parties in a way that made negligent interference with prospective advantage actionable. Cf.
Western Union Telegraph Co. v. Bowman, 37 So. 493, 496 (Ala. 1904) (holding a telegraph
company liable for negligent failure to deliver a message that would have created a
favorable contract); Western Union Telegraph Co. v. McKibbon, 14 N.E.2d 894, 897 (Ind.
1887) (same).
51
Because many contracts also contain promises of confidentiality, mediator behavior
that gives rise to a privacy-based tort claim may also give rise to a breach of contract claim.
52
See 2 DOBBS, supra note 20, § 424, at 1197-98 (describing the various manifestations
of the invasion of privacy tort).
53
Other forms of invasion of privacy have little apparent relevance to the mediation
context. Cf. William L. Prosser, Privacy, 48 C
AL. L. REV. 383 (1960) (describing other
aspects of privacy, including appropriation, unreasonable intrusion, and false light).
54
See 2 DOBBS, supra note 20, §§ 424-27, at 1197-1208 (describing privacy rights and
related tort liability for appropriation of personality, and intruding upon and publicizing
private life).
MOFFIT.DOC 2/7/2003 11:44 AM
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person of ordinary sensibilities in a context in which legitimate public interest
did not demand its disclosure.
55
For example, a mediator might learn, during a
private caucus with the defendant, sensitive and potentially offensive
information about the defendant. If the mediator then called a press conference
during a break in the mediation to announce what she learned about the
defendant, the disclosure of that private information could qualify as a tortious
invasion of the defendant’s privacy. The subject matter of most disputes
reaching mediation is sufficiently mundane, however, that even a complete
breach of confidentiality by the mediator would not likely satisfy the
requirements of an invasion of privacy action. The subject matter simply
would not be objectionable enough to warrant a claim. Still, mediations in
some contexts, such as divorce, may include exposure to highly sensitive,
embarrassing information of the sort that would be legitimately protected
under tort standards. Imagining a context in which a mediator would choose to
make such information public, however, demands considerable speculation and
creativity. The narrowness of the requirements for an invasion of privacy
action makes the tort applicable only to a set of uncommon circumstances.
3. Contracts Provide Little Basis for a Claim
Contractual obligations may theoretically bind mediators in a way that
would provide legal recourse to injured parties. In order to bring a successful
contract action against a mediator, however, a party would need to demonstrate
a breach of either an express term or an implied term in the mediation contract.
As a practical matter, neither of these is easy to do.
In the rare instance when the mediator has ex ante detailed contractually all
of the services she will provide, an action for breach of contract would be
relatively easy to maintain. If mediation services resembled those of an auto
mechanic, for example, one would expect the service contract to include an
accounting of the services to be provided. A customer who agrees to a
mechanic’s proposal to “put in new fan belts, adjust the timing, replace the
spark plugs and the wipers” has a catalog of express promises. Any failure by
the mechanic to perform one of these services may create a cause of action for
the consumer.
Most of the detailed, express promises contained in mediation agreements,
however, do not address the question of what the mediator will actually do
during the mediation. Instead, most mediation contracts, to the extent they
make any express promises, address mediators’ behaviors in advance of the
mediation—for example, disclosures of conflicts of interest
56
—or after the
55
RESTATEMENT (SECOND) OF TORTS § 652D (1965).
56
For examples of promises to investigate and disclose conflicts of interest see JOHN W.
COOLEY, MEDIATION ADVOCACY app. G, ¶ 2 (1996) (“The Mediator and each party confirm
that they have disclosed . . . any past or present relationship that a reasonable person would
believe would influence the Mediator’s impartiality . . . .”); CPR Institute for Dispute
Resolution, CPR Model Mediator Retainer Agreement (Excerpt), at
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164 BOSTON UNIVERSITY LAW REVIEW [Vol. 83:147
completion of the mediation—for example, maintaining confidentiality of
mediation communications.
57
The research for this Article included an
examination of several dozen mediation contracts currently being used in the
United States, Canada, and New Zealand. Few mediation agreements contain
specific promises about actions the mediator will or will not take during the
mediation.
The few express contractual provisions addressing a mediator’s conduct
during the mediation tend overwhelmingly to be statements of broad principle
or purpose, rather than specific promises. Some mediation contracts will spell
out relatively insignificant
58
aspects of the mediation in great detail—the
timing of meetings and billing procedures, for example. Language aimed at
more significant and challenging mediator practices typically suffers from
vagueness that will defeat contract-based claims.
59
For example, mediators’
contracts commonly contain language declaring that the mediator will be
“even-handed,” “impartial,” or “neutral” in the discharge of her services.
60
http://www.cpradr.org/conflict.htm#retainer (accessed Jan. 9, 2003) (“The Neutral has made
a reasonable effort to learn and has disclosed to the parties in writing . . . [any
circumstances] that may create doubt regarding the Neutral’s impartiality in the
Proceeding.”). At least one scholar has suggested that conflicts of interest are so critical to
the integrity of mediation that failure to disclose a conflict of interest should be considered a
breach of an implied term. Amanda K. Esquibel, The Case of the Conflicted Mediator: An
Argument for Liability and Against Immunity, 31 R
UTGERS L. J. 131, 168 (1999).
57
Virtually every mediation contract examined in the preparation of this Article includes
a confidentiality promise of some form. None of those clauses distinguishes between
maintaining confidentiality during the course of a mediation and maintaining it following a
mediation. See, e.g., MARK D. BENNETT & MICHELLE HERMANN, THE ART OF MEDIATION
219-20 (1996); B
ARBARA ASHLEY PHILLIPS, THE MEDIATION FIELD GUIDE: TRANSCENDING
LITIGATION AND RESOLVING CONFLICTS IN YOUR BUSINESS OR ORGANIZATION app. F (2001);
BETTE J. ROTH ET AL., THE ALTERNATIVE DISPUTE RESOLUTION PRACTICE GUIDE pt. III, app.
5 (1993); J
OHN R. VAN WINKLE, MEDIATION: A PATH BACK FOR THE LOST LAWYER 127-28
(2001); J.A.M.S./Endispute Mediation Agreement, in BENNET G. PICKER, MEDIATION
PRACTICE GUIDE: A HANDBOOK FOR RESOLVING BUSINESS DISPUTES app. H (1998);
Memorandum and Agreement to Mediate from United States Arbitration & Mediation, to
Michael Moffitt, Assistant Professor, University of Oregon School of Law (May 15, 2002)
[hereinafter USAM Memo] (on file with author). In addition to pursuing the contract-based
claims described here, a party whose mediator has breached confidentiality may be able to
assert a tort claim of invasion of privacy. The availability of a privacy action, however, is
speculative since no such actions have been maintained successfully to date.
58
These terms are insignificant only in the sense that they are unlikely to form the basis
of a subsequent legal claim.
59
See, e.g., Arthur Chaykin, Mediator Liability: A New Role for Fiduciary Duties?, 53
C
INC. L. REV. 731, 737 (1984) (arguing that the vagueness of any mediation agreement
limits its usefulness as a source of contract rights for clients against the mediator); Lynch,
supra note 7, at 113-16 (supporting Chaykin’s argument).
60
Sorensen-Jolink, Trubo, Williams, McIlhenny & Williams, LLP, Agreement for
Mediation (on file with author) (“neutral”); Natran Mediation Services, Mediation Contract,
MOFFIT.DOC 2/7/2003 11:44 AM
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Mediation contracts also often include general language about the role of the
mediator. For example, contracts may describe the mediator’s role as
“assist[ing] the parties,” “organizing the discussions,” or “help[ing] the parties
to communicate effectively, gather and analyze information, define issues,
generate alternatives, explore consequences and reach agreements acceptable
to both parties.”
61
Because these terms appear on the face of the contract, they
are treated as express. Their breadth and vagueness, however, pose significant
challenges to any party seeking to demonstrate a breach.
62
Was the mediator’s
statement biased, or merely a diligent and honest effort aimed at protecting the
parties’ self-determination? Did the mediator’s decision to cut off one party’s
statement facilitate or hinder communication? A mediation contract typically
says little about the mediation decisions and actions most likely to upset a
party.
Even when a mediation contract expressly incorporates externally created
available at http://www.natran.ca/contract.html (accessed May 10, 2002) (“impartial”);
David E. Hollands, Standard Terms of Engagement as Mediator ¶ 2, available at
http://homepages.ihug.co.nz/~deh/med-terms.htm (accessed May 10, 2002) (“even-
handed”); see also Robert B. Fitzpatrick, ADR and Settlement Forms, Superior Court for the
District of Columbia 713, 716 (ALI-ABA Course of Study, Dec. 2, 1999) (“unbiased,
neutral and independent”). Certain actions, such as failure to disclose a conflict of interest,
may constitute a breach of these terms. See Esquibel, supra note 56 (suggesting that “a
mediator that has a conflict of interest and has failed to disclose it has breached his contract
to provide mediation services”). The best analogy, perhaps, to the difficulty of establishing
partiality in the context of conduct is the requirement in the Code of Judicial Conduct that
judges behave with “impartiality.” Even “indecorous” or “intemperate” behavior from a
judge is not held to evidence sanctionable bias, however. The actions may be sanctionably
inconsistent with appropriate judicial temperament, but that criterion does not rest on
impartiality. Instead, absent actual conflicts of interest, a judge’s comments will be
considered improperly partial only when they evidence an unwillingness to consider further
evidence or arguments. See S
HAMAN ET AL., JUDICIAL CONDUCT AND ETHICS §§ 3.02-3.10,
4.07 (3d ed. 2000) (discussing judicial demeanor, impartiality, and competence).
61
Van Winkle, supra note 57, at 126 (“assists the parties”); USAM Memo, supra note
57, at 1 (“organizing the discussions”); Tennessee Administrative Office of the Courts,
Agreement to Mediate, at http://www.tsc.state.tn.us (accessed Oct. 18, 2002) (“help[ing] the
parties to communicate effectively, gather and analyze information, define issues, generate
alternatives, explore consequences and reach agreements acceptable to both parties”).
62
An exception to this is the mediation contract employed by Diane Neumann &
Associates Divorce Mediation Services. Article 8 of their standard contract states, “At the
conclusion of the [mediation] sessions, the mediator will prepare a written Separation
Agreement (which will be our divorce agreement), which sets forth the divorce settlement,
and we will each receive a copy.” Diane Neumann & Associates Divorce Mediation
Services, Mediation Contract, at http://www.divorcemed.com/Contract.htm (accessed May
10, 2002). Surprisingly, this contract appears to provide a specific promise of a divorce
agreement, potentially exposing the mediator here to a contract action should the mediation
fail to produce an agreement. In order to avoid such liability, most other mediation
contracts avoid making any representations about the outcome of the mediation.
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standards of conduct, there are few specific promises on which to base a
contract claim. The standards of conduct created by mediation associations
and referral services are often replete with generalized, aspirational calls for
mediators to do things like “remain impartial,” “recognize . . . the principle of
self-determination,” or “help [the parties] make informed decisions.”
63
The
lack of specificity in these standards not only provides little guidance to
practicing mediators,
64
but also makes it extraordinarily difficult for a party to
demonstrate a mediator’s breach.
In the absence of express contractual terms on which to base a claim, certain
terms may be considered implied within the contract. Suits alleging a breach
of an implied contractual term, however, are no easier to maintain than any of
the other theories listed above. The principal term implied into a mediation
contract would be a covenant of good faith, binding a mediator to mediate with
reasonable skill and care.
65
Reasonableness, however, is tested against the
norm of practice within mediation generally, making it difficult to base a claim
on such a duty.
66
Any effort to demonstrate a breach of an implied covenant to
exercise reasonable care would likely face extraordinary obstacles because, as
is described above, mediation practitioners rarely agree that a single practice is
“correct” or “standard” in a given situation.
Liability waivers, commonly found in mediation contracts, present a final
obstacle to mounting a successful contract-based claim against a mediator. In
some standard form mediation contracts, parties are asked—and presumably
often agree—to waive rights to sue mediators for any acts or omissions in
connection with the mediation.
67
Other standard forms limit the scope of the
63
See, e.g., MODEL STANDARDS OF CONDUCT FOR MEDIATORS Standards I, II (1994),
available at http://www.abanet.org/dispute/modelstandardsofconduct.doc (accessed Oct. 18,
2002) (outlining model standards of conduct for mediators).
64
See Jamie Henikoff & Michael Moffitt, Remodeling the Model Standards of Conduct
for Mediators, 2 HARV. NEG. L. REV. 87 (1997).
65
See Esquibel, supra note 56 (suggesting that mediation depends so heavily on an
absence of conflicts of interest that a duty to disclose conflicts should also be considered
implied in any mediation agreement).
66
See BOULLE & NESIC, supra note 6, at 513-17 (discussing a mediator’s potential
liability in contract and tort); Schulz, supra note 5, at 285-86.
67
See, e.g., COOLEY, supra note 56, app. G, ¶ 8 (the mediator “shall have the same
limited immunity as judges and court employees would have under federal law”);
Fitzpatrick, supra note 60, at 721 (“[T]he Parties agree not to hold the mediator responsible
either for the outcome of this mediation or for her actions or inactions.”); Hollands, supra
note 60, ¶ 23 (“The mediator shall not be liable to any person or entity, including the parties,
for any act or omission including negligence or breach of confidentiality or for any advice
or opinion or comment associated with his engagement as mediator and involvement in the
dispute.”); Van Winkle, supra note 57, at 128 (“The parties agree that the mediator shall
have immunity in the same manner and to the same extent as a judge in the state in which
the mediation is conducted.”); Internet Neutral, Internet Neutral Mediation Rules, at
http://www.internetneutral.com/rules.htm (accessed May 10, 2002) (the mediator shall not
MOFFIT.DOC 2/7/2003 11:44 AM
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waiver by allowing for suit only in cases of willful misconduct.
68
Not all
mediation contracts include language that limits liability,
69
but the prevalence
of these waivers almost certainly serves to limit the number of successful suits
against mediators. A waiver clause, if upheld, would bar at least negligence-
based claims.
70
Even if the provisions were not enforceable, it is reasonable to
assume that some parties may be deterred from suing based on an assumption
that they had contractually waived their right to do so.
4. Fiduciary Duties do not Regularly Attach to Mediators
As a theoretical matter, an injured mediation party could assert that the
mediator’s behavior constituted a breach of fiduciary obligations. Fiduciary
theories of liability for mediators are premised on the idea that certain
mediation circumstances may trigger trust-based fiduciary obligations for
mediators. As a general matter, a person acts as a fiduciary when he or she
handles a transaction for the benefit of another, acting in a position of
confidence, trust, and good faith.
71
The attachment of fiduciary obligations is
not driven by title or status, but by circumstances. As a result, the inquiry
about the existence of fiduciary duties is fact-specific.
72
One scholar, Arthur
“be liable to any Party for any act or omission relating to” the mediation); USAM Memo,
supra note 57, ¶ 8 (the “mediators are entitled to an immunity from suit”).
68
See, e.g., ADR Institute of Canada, Rules & Protocol, Model Mediation Procedure ¶
27, available at http://www.amic.org/rules/model.html (accessed May 10, 2002) (mediators
shall not “be liable to the parties for any act or omission in connection with the services
provided by them, in or in relation to, the Mediation, unless the act or omission is fraudulent
or involves willful misconduct”).
69
Perhaps not surprisingly, an example of a mediation contract without a waiver of
liability is published by the National Institute for Trial Advocacy. See BENNETT &
HERMANN, supra note 57, at 217-25 (providing a sample agreement to mediate). For other
examples of contracts without waiver provisions, see Natran Mediation Services, supra note
60; P
ICKER, supra note 57, app. G at 128-37.
70
Note, however, that attorneys may not include liability waivers in their representation
contracts with clients. See 2 D
OBBS, supra note 20, § 484, at 1385 n.4 (“Lawyers are
forbidden to contract out of malpractice liability.” (citing R
ESTATEMENT OF THE LAW
GOVERNING LAWYERS § 76(1) (Tentative Draft No. 8, 1997))); MODEL RULES OF PROF’L
CONDUCT R. 1.8(h) (2002) (“A lawyer shall not make an agreement prospectively limiting
the lawyer’s liability for malpractice unless [permitted by law and] the client is
independently represented in making the agreement . . . .”).
71
36A C.J.S. Fiduciary at 381 (1961) (describing a “fiduciary” as “a person having the
duty, created by his undertaking, to act primarily for another’s benefit in matters connected
with such undertaking”). A precise, universally applicable definition of “fiduciary” is
elusive. A fiduciary relationship is “any relationship of blood, business, friendship, or
association in which the parties repose special trust and confidence in each other and are in a
position to have and exercise influence over each other, and implies a condition of
superiority of one of the parties over the other.” Id. at 383.
72
See Chaykin, supra note 59, at 741 (arguing that there is no per se rule defining
persons as fiduciaries).
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Chaykin, has suggested that the hallmark of this inquiry in the mediation
context would be merely whether the mediation party (or parties) “justifiably
trusted” the mediator.
73
If the injured party was justified in trusting the
mediator, then according to this theory of liability, the mediator would be
strictly liable for any breach of that trust.
Fiduciary obligations could extend into the realm of mediation, however,
only with a degree of judicial adaptation unlikely to be forthcoming.
Chaykin’s proposal drew skeptical response from many within the mediation
community.
74
At best, fiduciary obligations involve highly flexible standards
that would produce relatively uncertain—even perhaps chaotic or
“idiosyncratic”—treatment.
75
In practice, a litigant arguing the presence of
fiduciary obligations would face considerable obstacles in establishing that
mediation obligations are sufficiently fixed to permit the application of
fiduciary obligations.
76
Furthermore, a prospective plaintiff would need to
overcome the structural difficulty of asserting that the mediator owes
simultaneous fiduciary obligations to parties with opposing interests in the
matter at hand. Fiduciary obligations cannot be structured responsibly in a
way that would damn the mediator no matter what she did, yet holding a
fiduciary obligation simultaneously to opposing parties risks exactly that.
77
Finally, a plaintiff seeking to establish a fiduciary obligation on the part of a
mediator would be challenged to demonstrate that the mediator occupied a
position not only of “influence,” but also of “superiority” sufficient to warrant
fiduciary status.
78
Unlike an agent, an attorney, an officer or a trustee, a
mediator is not empowered by the party to make decisions on behalf of the
73
Id. at 744 (arguing that the justifiable trust concept is easily placed in the mediation
context).
74
See, e.g., Jospeh Stulberg, Mediator Immunity, 2 OHIO ST. J. ON DISP. RESOL. 85
(1986) (disagreeing with Chaykin’s assumptions regarding the mediators role); Note, The
Sultans of Swap: Defining the Duties and Liabilities of American Mediators, 99 HARV. L.
REV. 1876 (1986) (rejecting comprehensive models and endorsing a more flexible approach
to mediator liability).
75
Chaykin, supra note 59, at 748 (discussing flexible standards and a wide variety of
outcomes in determining whether someone was acting as a fiduciary in a particular context).
76
See Stulberg, supra note 74, at 85 (criticizing Chaykin’s view of mediators’
obligations as unnecessarily rigid); Sultans of Swap, supra note 74, at 1883 (criticizing
Chaykin’s proposal for unwisely grouping all mediators together, regardless of the legal and
contractual context in which they operate).
77
BOULLE & NESIC, supra note 6, at 519 (arguing that the nature of the fiduciary
obligation fits uneasily with the mediator’s dual obligations to adverse parties). Chaykin
responds to this criticism in particular by naming it a misconception of the nature of
fiduciary duties. He points to the example of corporate actors who must balance between
the potentially conflicting interests of shareholders, directors, officers, and employees.
Chaykin, supra note 59, at 747.
78
36A C.J.S. Fiduciary at 383 (1961) (noting that influence and superiority are
necessary factors in declaring fiduciary status).
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party. Indeed, the mediator is not even charged with protecting the
complaining party’s interests as they might conflict with another mediation
party’s interests. Fiduciary obligations constitute a sloppy mechanism for
creating mediator obligations—one that is very unlikely to be available to
prospective litigants.
5. Non-Mediation Professional Standards Govern Only Narrow Aspects
of Mediation Practice
A mediator who engages in conduct falling within the purview of a separate
profession may be subject to malpractice liability under the standards of that
separate profession. Furthermore, if a mediator engages in professional
activity for which she is not appropriately licensed, she may be subject to
sanction regardless of the quality of her professional services. In theory,
perhaps, there would be no overlap between conduct falling within the scope of
mediation and conduct falling within the purview of a distinct practice or
profession. If that were the case, a mediator would act as a mediator only up
until the point when she acts as something else, as a lawyer, as a doctor, or as a
therapist. In practice, the line is unclear,
79
and thus the question of cross-
professional or multi-professional practice merits mention.
The mediator activities perhaps most likely to raise cross-professional
questions are those related to the practice of law. The precise parameters of
“the practice of law” are not easily articulated. Typical definitions inquire
whether a person is acting in a representative fashion, whether a person is
“counseling or advising another in connection with their legal rights and
duties,” whether one is exercising legal judgment, and whether the relationship
is one of trust based on legal advice.
80
If a mediator advises one or both of the
parties about the legal implications of a proposed agreement and suggests an
alternate way of structuring the deal, most would agree that the mediator is
engaging in the practice of law. Less clear are examples of mediator conduct
such as reducing agreements to writing or providing quasi-legal information.
81
If a mediator’s conduct is held to be the practice of law, she will be judged
against the standards of legal practice—even though she was titularly
79
See, e.g., Nolan-Haley, supra note 22, at 269-82 (describing the potential overlap
between mediation and the practice of law).
80
Shane L. Goudey, Too Many Hands in the Cookie Jar: The Unauthorized Practice of
Law by Real Estate Brokers, 75 O
R. L. REV. 889, 894 (1996) (quoting STATE BAR OF
ARIZONA, REPORT OF THE UNAUTHORIZED PRACTICE OF LAW COMMITTEE 4 (1991)).
81
For a useful summary of the application of UPL principles to mediators’ practices, see
Nancy Rogers & Craig McEwen, Mediation and the Unauthorized Practice of Law, 23
M
EDIATION Q. 23 (1989). See also Department of Dispute Resolution Services of the
Supreme Court of Virginia, Guidelines on Mediation and the Unauthorized Practice of Law,
available at http://www.courts.state.va.us/text/drs/upl/appendix_A.html (surveying UPL
application to mediators in various jurisdictions) (accessed Aug. 2, 2002).
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mediating at the time of the behavior.
82
Comparatively more developed than
the jurisprudence regarding mediator practices, legal malpractice presents a
genuine opportunity for an injured party to recover against a mediator for her
lawyerly misconduct.
83
If a mediator is not licensed to practice law, but nonetheless engages in the
behavior described above, not only will the mediator be subject to scrutiny as
if she were a lawyer,
84
but she will also face the potentially serious charge of
unauthorized practice of law (UPL). Sanctions for UPL can include
injunctions, contempt, fines or imprisonment.
85
Importantly, however, because
the complainant in a UPL action is typically the state bar association, UPL
presents no separate opportunity for parties to recover damages beyond a legal
malpractice claim. Therefore, a mediator who engages in unauthorized, but
otherwise flawless lawyering, faces no threat of liability to the mediation
parties. The party in question will have suffered no actual injury from the
mediator’s competent, but unlicensed, legal services. At most, the mediator
will face the prospect of a UPL complaint.
86
Other professions also enjoy monopolies that enable them to restrict certain
practices to licensed members of the profession. Practicing medicine without a
license, for example, carries a risk of civil or criminal sanction.
87
It is difficult
to imagine that a mediator would spontaneously
88
slip into behavior especially
82
In addition to scrutinizing the mediator’s behavior against lawyers’ practice standards,
the practice of law within the context of mediation or any other dual representation
circumstance raises ethical considerations as well. See generally Moffitt, supra note 24;
Nolan-Haley, supra note 22.
83
Without engaging too deeply into the ongoing debate regarding the appropriateness of
evaluative mediation, I would note that a mediator who engages in case evaluation increases
her exposure to malpractice liability because the process of evaluation almost certainly falls
within the parameters of the practice of law. Cf. Lela P. Love, The Top Ten Reasons Why
Mediators Should Not Evaluate, 24 F
LA. ST. L. REV. 937, 938-39 (1997) (arguing that
evaluative mediators combine roles that are incompatible). Love does not name specifically
the increased risk of liability among her ten reasons for mediators not to evaluate. Without
joining in some of Love’s reasoning, I would suggest that increased liability exposure ought
to figure in a mediator’s decision regarding evaluation.
84
See COLE ET AL., supra note 18, § 11:3.
85
See, e.g., CONN. GEN. STAT. ANN. §§ 51-88 (West Supp. 2002) (providing penalties for
unauthorized practice of law).
86
But see Nolan-Haley, supra note 22, at 269-70 (“Case law is sparse and thus to a large
degree mediation practice by non-lawyers operates more under the shadow or threat of UPL
regulations rather then under an active enforcement regime.”).
87
See FLA. STAT. ANN. §456.065 (West Supp. 2002) (making the unlicensed practice of
medicine a third degree felony); ALISON BARNES ET AL., HEALTH CARE LAW DESK
REFERENCE 25-27 (2001) (describing both criminal and civil remedies); GEORGE J. ANNAS,
STANDARD OF CARE: THE LAW OF AMERICAN BIOETHICS 128-29 (1993) (noting that “[h]ealth
professionals are licensed by state agencies in each of the fifty states,” and that “[l]icensing
grants a monopoly and makes the practice of their profession without a license a crime”).
88
Certain states’ restrictions against the unlicensed practice of medicine include a
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reserved for surgeons mid-mediation. It is easier, however, to imagine that
mediator practices may fall within the proper purview of psychotherapy,
creating risks of claims of malpractice or professional negligence similar to
that of lawyers.
89
The line between the practice of mediation and the practice
of therapy is both fine and significant, particularly in cases such as divorce,
where the disputants commonly seek therapeutic services at the same time they
seek mediation services.
90
Separate professions’ standards of conduct,
therefore, serve as theoretical bases for establishing mediator liability in certain
circumstances.
Most mediators’ behaviors, whether helpful, ineffective, or injurious do not
fall within the scope of a separate profession. Many professionals ask clients
questions and help them to arrive at creative solutions to difficult problems.
No profession, however, has a professional monopoly on such services. No
one faces a risk of being charged with the unauthorized posing of open
“holding out” requirement under which an individual charged with the unlicensed practice
of medicine must have made some public representation offering medical services. BARRY
R. FURROW ET AL., HEALTH LAW 64-65 (2d ed. 2000). In those states, theoretically, a
mediator who accidentally practiced medicine would not face the same exposure to criminal
liability. Again, the issue is unlikely to arise in mediation.
89
Psychotherapy is a state licensed practice, in many ways similar to the practice of law
or medicine. E.g., CAL. BUS. & PROF. CODE § 2903 (West 2002) (stating that “[n]o person
may engage in the practice of psychology, or represent himself or herself to be a
psychologist, without a license . . .”); ALASKA STAT. § 08.86.180 (Michie 2000) (stating that
“[u]nless licensed under this chapter, a person may not practice psychology or hold out
publicly as a psychologist or as practicing psychology”). Penalties for the unlicensed
practice of psychotherapy include criminal liability and, in the event of professional
negligence, the risk of civil liability. E.g., C
OLO. REV. STAT. § 12-43-702.5 (2001) (making
the unlicensed practice of psychotherapy a class three misdemeanor); Hampton, supra note
37 (describing the opportunities and obstacles for recovery against therapists under tort and
contract theories of recovery). In at least one state, it is a statutorily defined public nuisance
for an unlicensed person to render psychotherapy services, a violation of which law gives
rise to the possibility of a suit seeking an injunction and a cease-and-desist order. 225 I
LL.
COMP. STAT. 15/27 (2001); Corgan v. Muehling, 574 N.E.2d 602 (Ill. 1991) (finding support
for an implied private cause of action in the statutorily defined public nuisance).
90
See, e.g., JAY FOLBERG & ANN MILNE, DIVORCE MEDIATION: THEORY AND PRACTICE
130-32 (1988) (comparing mediation and therapy); Jay Folberg, Divorce Mediation:
Promises and Problems, in G
OLDBERG ET AL., DISPUTE RESOLUTION: NEGOTIATION,
MEDIATION, AND OTHER PROCESSES 458-64 (3d ed. 1999) (describing the tensions between
attorneys, mental health professionals, and family mediators in drawing the boundaries of
each practice); Mary Kay Kisthardt, The Use of Mediation and Arbitration for Resolving
Family Conflicts: What Lawyers Think About Them, 14 J.
AM. ACAD. OF MATRIMONIAL L.
353 (1997) (comparing lawyers’ vision of certain divorce issues as “legal” to the mental
health professionals’ view of the same issues as primarily “emotional” in the same context),
reprinted in A
LFINI ET AL., supra note 30, at 518-19; John Haynes, Mediation and Therapy:
An Alternative View, 10 M
EDIATION Q. 21 (1992) (describing some potential overlap
between mediation and therapeutic approaches, while arguing that mediators must not
engage in therapy “under the guise of mediation”).
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questions or the unlicensed facilitation of a discussion. The boundaries of
activities reserved uniquely for members of a single profession are relatively
narrow.
91
Parties’ reference to other professions’ standards of conduct is
relevant only in that subset of mediation circumstances in which the mediator
is correctly considered to be engaging in professional practice beyond
mediation.
6. Access to Mediation Information is Limited
Because mediation generally takes place under a shroud of confidentiality,
those seeking to establish mediator liability have a difficult time comparing a
mediator’s conduct in one mediation with the conduct of other mediators in
other cases. Confidentiality enjoys a prominent role in mediations in almost all
circumstances. In many instances, mediation confidentiality is ensured by a
statutory privilege. The leading example of this mechanism for structuring
mediation confidentiality is the Uniform Mediation Act (“UMA”), which was
recently approved by the National Conference of Commissions on Uniform
State Laws. Under the terms of the UMA, and many similar state statutes,
parties hold a privilege that effectively permits them to block disclosure of
information related to the mediation.
92
Even in the absence of statutory
confidentiality protections, virtually all mediation contracts include provisions
assuring at least some level of confidentiality.
93
While neither statutory
privilege nor contractual provisions serve as a foolproof bar against revelations
about the mediation, their protections limit the ability of outsiders to assess
what took place during the mediation. Even when confidentiality protections
include exceptions for disputes arising out of the mediation, a party to one
mediation will have no meaningful ability to assess how his mediation
experience compares with that of others.
Exceptions to confidentiality for purposes of addressing disputes about the
mediation are relatively common.
94
These exceptions prevent the absurd
outcome of precluding a mediator from defending herself with testimony about
the mediation in a case in which a mediation party is suing a mediator for
91
Jacqueline Nolan-Haley has argued that mediations invariably include a component of
legal evaluation, skirting along the borders of the practice of law. See Nolan-Haley, supra
note 22, at 277-80. Even if this suggestion is true, it speaks only to a subcategory of the
activities undertaken by a mediator. Much of what mediators do during the course of a
mediation has nothing to do with the practice of law.
92
See UNIF. MEDIATION ACT §§ 2, 4-8 (2002). For a thoughtful critique of the UMA’s
confidentiality provisions, see Scott Hughes, The Uniform Mediation Act: To the Spoiled Go
the Privileges, 85 M
ARQ. L. REV. 9 (2001) (criticizing the UMA’s confidentiality
provisions).
93
See sources cited supra note 57.
94
For example, the UMA provides that the typical mediation privilege does not apply to
mediation communications “sought or offered to prove or disprove a claim or complaint of
professional misconduct or malpractice filed against a mediator.” U
NIF. MEDIATION ACT §
6(a)(5).
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mediation malpractice. These exceptions do not, however, provide outside
parties an opportunity to learn how the mediation transpired. Mediation
commentators have largely been in favor of these confidentiality protections,
asserting that heightened visibility into mediations would damage or destroy
the ability of mediators to perform their functions.
95
Regardless of the wisdom
of these protections, limited visibility into mediation makes it all the more
difficult for an unhappy litigant to assert that a mediator’s behavior fell below
customary practice. Confidentiality protections prevent plaintiffs from having
meaningful access to information regarding customary practice.
7. Immunity Sometimes Extends to Mediators
Even if a complaining party could overcome the obstacles listed above and
establish liability, civil immunity attaches to shield certain mediator actions or
inactions from the scrutiny of litigation. Immunity does not extend to all
functions of all mediators in all contexts.
96
Common law and statutory
immunity, however, preclude successful lawsuits against a significant subset of
mediators.
Quasi-judicial immunity is one form of protection potentially available to
mediators. In order to protect the independence of judicial functions, the
common law doctrine of judicial immunity serves as absolute protection for a
judge’s jurisdictionally sound, discretionary decisions.
97
The Supreme Court
has extended this form of immunity to certain actors outside of the judiciary
when the functions in question are essentially judicial in nature. In Butz v.
Economou,
98
the Court adopted a three-prong test for determining whether
judicial immunity extends to a non-judicial official: (1) Is the official’s
function comparable to that of a judge; (2) is the official likely to suffer
harassment or intimidation as a result of performing that function; and (3) are
there other procedural safeguards capable of protecting against
unconstitutional conduct?
99
When such immunity is extended to non-judicial
95
Compare Michael L. Prigoff, Toward Candor or Chaos: The Case of Confidentiality
in Mediation, 12 S
ETON HALL LEGIS. J. 1 (1988) (citing candor, fairness, privacy and
neutrality as justifications for mediation confidentiality), with Eric A. Green, A Heretical
View of the Mediation Privilege, 2 O
HIO ST. J. ON DISP. RESOL. 1 (1986) (suggesting that the
asserted need for confidentiality in mediation is overstated).
96
Immunities generally attach to conduct, rather than to people or to their official
positions. As is discussed below, for example, a judge enjoys immunity only for judicial
actions. Even the stunningly broad protections of diplomatic immunity—a protection that
seemingly attaches to people, rather than to actions—include certain exceptions that
examine the nature of the conduct in question. See Vienna Convention on Diplomatic
Relations and Optional Protocol on Disputes, Nov. 8, 1972, art. 31, 23 U.S.T. 3227.
97
Cassondra E. Joseph, The Scope of Mediator Immunity: When Mediators Can Invoke
Absolute Immunity, 12 OHIO ST. J. ON DISP. RESOL. 629, 635-48 (1997) (discussing judicial
and quasi-judicial common law immunity).
98
438 U.S. 478 (1978).
99
Id. at 513-16.
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actors, it is termed quasi-judicial immunity.
The principal case suggesting that quasi-judicial immunity may extend to
mediators is Wagshal v. Foster.
100
In the action underlying Wagshal, Jerome
Wagshal brought a suit against Charles Sheetz, and the trial court judge
referred the parties to neutral case evaluation through the District of Columbia
Superior Court’s ADR Program. During the case evaluation process, Wagshal
asserted that the appointed case evaluator, Mark Foster, was biased. Pursuant
to the rules of the court’s ADR program, Foster wrote a letter to the trial court
judge seeking recusal and recommending continued settlement efforts. In the
letter, Foster made statements to the judge implying that the barrier to
settlement was Wagshal’s unwillingness to be reasonable. The trial court
accepted Foster’s recusal and appointed a different case evaluator. Wagshal
subsequently settled the claim against Sheetz, but then initiated a suit against
Foster alleging that Foster’s biased conduct forced Wagshal to settle for less
than he otherwise would have received.
101
In upholding the trial court’s
extension of quasi-judicial immunity to Foster, the D.C. Court of Appeals
determined that the case evaluator’s functions were sufficiently judicial and
that there was sufficient risk of harassment by dissatisfied litigants to merit
quasi-judicial immunity.
102
Although Foster served in this dispute as a case
evaluator, a function distinct from mediation,
103
the court’s language treated
the two terms interchangeably.
104
Because quasi-judicial immunity “flows not
from rank or title or location within the Government but from the nature of the
responsibilities of the individual official,”
105
the Wagshal determination does
not stand as an absolute extension of immunity to all court-appointed
mediators. Instead, common law
106
quasi-judicial immunity demands a fact-
specific inquiry into the functions of the official in question. Wagshal,
100
28 F.3d 1249 (D.C. Cir. 1994) (holding that the mediator was protected by quasi-
judicial immunity).
101
Id. at 1250-51.
102
Id. at 1252-53. The court in Wagshal did not consider in detail the third prong of the
Butz test—regarding the adequacy of protections against constitutional violations—because
the plaintiff in Wagshal had not sufficiently articulated a constitutional claim. The court
did, however, cite the availability of recusal requests as evidence of such protections. Id. at
1253-54.
103
The debate within the mediation community regarding the distinction—if any—
between mediation and evaluation has a long and long-winded history. In this instance, at
least, the creators of the D.C. Superior Court’s ADR Program distinguished between
Mediator and Case Evaluator inasmuch as they required a choice of ADR mechanism in
which each was separately available.
104
Id. at 1251 n.2. The court’s holding specifically states “that absolute quasi-judicial
immunity extends to mediators and case evaluators” in the ADR program. Id. at 1254.
105
Cleavinger v. Saxner, 474 U.S. 193, 201 (1985) (internal citation omitted).
106
Quasi-judicial immunity may also be extended to mediators statutorily. E.g., FLA.
STAT. ANN. § 44.107 (West 1998) (extending to mediators “judicial immunity in the same
manner and to the same extent as a judge”).
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therefore, supports but does not resolve the suggestion that mediators affiliated
with a court
107
may enjoy quasi-judicial immunity.
Some jurisdictions statutorily supplement or replace quasi-judicial
immunity—typically a common law protection—with statutorily defined
“qualified immunity.” Some states reserve qualified immunity to mediators
associated with the court system, while others extend qualified immunity even
to purely private mediation service providers.
108
Qualified immunity is more
limited in scope than quasi-judicial immunity, often excluding coverage in
cases involving bad faith or intentional misconduct.
109
In some respects,
qualified immunity is a compromise seeking both to protect mediators from
harassing lawsuits and to deter mediators from abusing their position.
Statutorily created qualified immunity typically shields a mediator, for
example, from suits alleging negligence. If, however, a plaintiff alleged that
the mediator willfully disregarded the rights of one of the parties, qualified
immunity would not bar the suit. As a practical matter, where it is held to
apply, qualified immunity is broad enough to shield mediators from lawsuits in
all but the most egregious of cases.
Putting aside for the moment questions about the wisdom of immunity in the
context of mediation,
110
common law and statutory immunity stand as partial
explanations for the dearth of lawsuits against mediators. Not surprisingly, in
those jurisdictions where mediators enjoy a form of immunity, mediators have
also enjoyed relative freedom from litigation.
C. Damages are Often Difficult to Demonstrate
Mediator misconduct could create four different kinds of injuries. First, a
mediator’s behavior might inappropriately cause the mediation to result in no
settlement. Second, a mediator’s inappropriate behavior might produce a
settlement, with terms injuriously unfavorable to one party. Third, a mediated
agreement might injure the interests of a party absent from the mediation,
whose interests the mediator was obliged to protect. Fourth, a mediator might
107
Immunity typically extends only to official actors. See, e.g., Dalton v. Miller, 984
P.2d 666 (Colo. Ct. App. 1999) (refusing to extend quasi-judicial immunity to psychologist
hired by one of the parties, while approving the use of quasi-judicial immunity for court-
appointed psychologists performing essentially the same function). At least one case has
suggested that quasi-judicial immunity could be extended to private, neutral parties. In
Howard v. Drapkin, 271 Cal. Rptr. 893 (Cal. Ct. App. 1990), the California Court of Appeal
extended quasi-judicial immunity to a privately contracted neutral psychologist hired by a
divorcing couple. The court’s language asserted that quasi-judicial immunity would extend
to any neutrals providing “arbitration, mediation, conciliation, evaluation or other similar
resolution of pending disputes.” Id. at 860. However, courts have yet to apply this holding
or its logic to mediators.
108
See Esquibel, supra note 56, at 145 (noting statutory provisions adopted by states).
109
Id. at 145-47.
110
I return to the question of the appropriate scope of mediator immunity in Part III.E.
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injure a party in ways not reflected in the outcome of the mediation.
111
For the
reasons listed below, a party alleging any of these injuries faces significant
difficulties in establishing damages.
1. Non-Settlement as Injury
If a mediation produces no agreement, the mediator’s conduct may be to
blame. A mediator can never claim unique responsibility for producing
settlement in a case. Similarly, only in an extraordinary circumstance would a
mediator bear unique responsibility for the parties’ failure to arrive at a
settlement. Some cases are destined not to produce settlements—for example,
because each of the parties reasonably perceives its non-settlement alternatives
as more attractive than anything a mediated settlement might produce.
112
Other cases fail to settle because of one party’s strategic or tactical decisions
falling outside of the influence of the mediator.
113
Still others may fail to settle
for structural reasons largely outside of the control of any of the parties or of
the mediator.
114
Given the complexity of settlement dynamics and the
uncertainty of causation, a party to a mediation would face tremendous
challenges demonstrating that the mediation would have produced a settlement
but for the mediator’s inappropriate behavior.
Even if a party could demonstrate that a settlement would have been reached
but for the mediator’s actions, the parties’ opportunity to mitigate the injury
generally would limit the damages from the failure to settle. In almost all
circumstances, nothing prevents parties from settling cases outside of the
auspices of a mediator. If the mediation terminated without settlement but a
settlement had been readily available, then the parties should have arrived at
111
A final, bizarre circumstance in which a party might claim injury stemming from a
mediator’s actions would occur if the mediation produced a settlement, and one party later
regretted not the terms of the settlement, but the fact of settlement. In essence the party in
such a case would claim, “But for the mediator’s actions, there would have been no
settlement and I would have won in court.” The causation problems with such a claim are
obvious. Even if a party overcame the proof problems associated with a claim that the
mediator was too successful in facilitating an agreement, the measure of damages associated
with such a claim would be intolerably speculative.
112
A case in which each party perceives its non-settlement alternative as more attractive
than any possible settlement option is said to be one with no Zone of Possible Agreement
(“ZOPA”). For more on the concept of ZOPAs in the context of bargaining, see R
OBERT
MNOOKIN ET AL., BEYOND WINNING: NEGOTIATING TO CREATE VALUE IN DEALS AND
DISPUTES 19-21, 107 (2000).
113
For a perspective on the impacts of strategic negotiation behavior on settlement
prospects, see Robert Mnookin & Lee Ross, Introduction to KENNETH ARROW ET AL.,
BARRIERS TO CONFLICT RESOLUTION 3-10, 22-24 (1995) (discussing mediation failures, even
when settlement is in the parties’ best interests).
114
See id. at 19-24 (identifying restricted channels of information and communication,
multiple interest groups, and the principal/agent problem as structural barriers to successful
dispute resolution).
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the settlement shortly after the termination of the mediation. At most,
therefore, a party’s injury stemming from the poorly conducted mediation
would be limited to the expenses of the mediation itself. With mediation
expenses comparatively low, and damages unavailable beyond the mediation
itself, an unhappy mediation party is unlikely to incur the costs of bringing a
suit against a mediator on the hope merely of recovering mediation-related
expenses.
In an extreme case, a party might assert that the mediator’s failure to
facilitate an agreement where one was possible caused more significant injury
than simple waste of time. For example, a party could claim that the failure of
the mediation caused a change in the settlement dynamics such that what was
once capable of settlement became incapable of settlement. The proof
problems in such an assertion, of course, would be tremendous. A party able
to overcome the difficulty of demonstrating that the case proceeded to trial
because of the mediator’s ineptitude could, theoretically, make a claim for the
larger costs associated with trial. The party might even assert that his injuries
included the difference between the theoretical settlement point the mediator
failed to produce, and the trial outcome and costs.
115
Such a claim, however,
lapses quickly into so extraordinary a level of speculation that a court would be
unlikely to entertain the assertion.
A more likely example of non-settlement injuries, though also difficult to
quantify, is the damage a failed mediation can have on the parties’ relationship.
Two disputing parties who voluntarily hire a mediator are, in some ways,
signaling recognition that they are unable to resolve the dispute on their own.
After all, if they had been able to resolve the relevant issues without outside
facilitation, one would reasonably assume that they would have done so. For
some, going through a mediation that produces no settlement only serves to
reinforce the perception that the dispute is difficult, if not intractable. Even
worse, in the hands of an unskilled mediator, each party inappropriately may
attribute non-settlement to the other party’s bad faith. If, after the fact, parties
determine—again assuming that such a determination were possible—that a
settlement had been possible, they might claim that the no-settlement
mediation decreased their ability to identify agreement opportunities.
Essentially, the parties would argue: “We didn’t settle afterwards because the
mediator’s performance in the mediation made us hate each other too much
115
Assume, for purposes of illustration, that the originally mediated case was between
plaintiff P, and defendant D. Assume also that, in the case against the mediator, P
believed—and could prove—that a competent mediator would have produced a settlement
in which D paid P $100,000. In the absence of a settlement, however, P litigated the case
and won a judgment of only $10,000. In a claim against the mediator, P could claim that
the appropriate measure of damages would be P’s litigation costs plus the difference
between the expected settlement and the actual trial outcome—in this case $90,000
($100,000 - $10,000). Even assuming for the moment that the plaintiff could overcome the
extraordinary proof problems here, the damage amounts would be so highly speculative that
it is unlikely any court would award the plaintiff such damages.
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even to see that there were grounds upon which to agree.” If an unhappy
disputant were able to prove such an effect, it might address the mitigation
problem mentioned above. Again, however, these claims of injury are so
extraordinarily speculative that it is not surprising that no mediation parties
have been successful in suing for non-settlement injuries.
2. Unfavorable Settlement Terms as Injury
In some cases, a party will revisit with remorse an agreement he struck as
part of a mediation. If a party were sufficiently unhappy with the arrangement
upon further examination, the party might seek to have the mediator provide
compensation for the injuries caused by the unfavorable agreement.
Essentially, a plaintiff in such a case would allege: “The mediator’s actions
inappropriately caused me to settle for X, when I could have, and should have,
received Y.” Each part of this assertion creates significant, if not
insurmountable legal difficulty. It is no surprise, then, that such claims are
almost unheard of.
Causation, of course, presents significant challenges for a plaintiff claiming
that he was injured by an unfavorable settlement. In particular, the fact that
each mediation party consented to the terms of the original agreement will
make it difficult for one of the parties subsequently to declare the mediator
responsible for the substance of the agreement. A hallmark of mediation is
that the mediator cannot impose terms on the parties. Instead, mediation
parties retain the ultimate say on whether the settlement terms are
acceptable.
116
A party who is unhappy, after the fact, with the terms of a
mediation agreement has few options for attributing his injury to the
mediator’s behavior. Conceivably, if the mediator engaged in “persuasion”
tantamount to coercion, the party could recover following the unfavorable
settlement. Similarly, if a party can demonstrate that the mediator engaged in
some type of fraud, then standard remedies would be available. In typical
cases, however, the now-unhappy disputant suffered from no known mental
deficiency and was not the victim of fraud or coercion. In the absence of such
factors, a complaining party would bear the burden of establishing that the
mediator owed a duty of some sort to assure a different distributive bargain.
The party might assert, for example, that the mediator owed a duty to protect
him from making a bad deal. At a minimum, such an argument would face
tremendous legal obstacles, as any construction of impartiality or neutrality
would recognize some tension between the interests of varying parties.
117
116
While there is great debate within the mediation community about almost all aspects
of mediation practice, the proposition that mediation parties retain final authority regarding
settlement holds general—if not universal—acceptance. See, e.g., G
OLDBERG ET AL., supra
note 90, at 123 (“The mediator, in contrast to the arbitrator or judge, has no power to impose
an outcome on disputing parties.”).
117
Certain conceptions of mediation suggest that the mediator owes a duty to protect the
parties’ interests and to gauge the fairness of the outcome to each of the parties. See Carrie
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Even if a mediator held a duty to prevent a distributively imbalanced
outcome, a complaining party would face the significant obstacle of
establishing a benchmark against which to measure the mediation outcome.
Recovery on any of these theories requires that the complaining party establish
not only that, but for the mediator’s conduct, the parties would have settled,
but also that the parties would have settled on agreement terms quantifiably
more favorable to the complaining party than the non-settlement outcome. If
we could go back and cleanse the mediation of the mediator’s transgressions,
what would the terms of an agreement have been? Even to begin to answer
that question requires an extraordinary willingness to engage in speculation.
Yet, establishing damages requires such speculation in this circumstance.
Reference to “fairness” or other benchmarking principles does not remove
speculation from the damage inquiry. Some may assert that we need not
establish with precision what the parties would have agreed to in order to fix a
measure of damages in a case of inappropriate settlement. Instead, they may
suggest that the appropriate measure of damages would be the difference
between the actual outcome and a “fair” resolution of the dispute. While this
demands slightly less speculation than a measure of the parties’ decisions, it
requires even more subjective assessment of the substantive dispute. At most,
fairness may establish a range of possible outcomes, but the range would
surely be a broad one and would still face considerable hurdles. How can one
measure the fairness of a deal without constraining oneself to the information
available to the parties at the time of the deal—even if the information is now
known to be incomplete or inaccurate?
118
How can one measure the fairness of
a deal that incorporates terms that would be unavailable in an adjudicative
determination?
119
Mediation agreements often include terms that the parties
Menkel-Meadow, Ethics in Alternative Dispute Resolution: New Issues, No Answers from
the Adversary Conception of Lawyers’ Responsibilities, 38 S. TEX. L. REV. 407, 444 (1997)
(“Where some mediators insist on withholding approval of an unfair or ‘unlawful’
settlement, the neutral’s role may be transformed from simple facilitator to ‘judge’ of the
parties’ agreement.”). Other commentators have argued that saddling an intervener with
responsibility to police the fairness of agreements is unwise and unworkable while still
referring to the intervener as a mediator. E.g., Joseph B. Stulberg, The Theory and Practice
of Mediation: A Reply to Professor Susskind, 6 V
T. L. REV. 85, 86 (1981) (“It is precisely a
mediator’s commitment to neutrality which ensures responsible actions on the part of the
mediator and permits mediation to be an effective, principled dispute settlement
procedure.”).
118
Fairness cannot be measured by examining a deal ex post, with the eyes of one who
knows how things turn out. Many deals can be consummated by capitalizing on parties’
differing predictions about what will happen in the future. See M
NOOKIN ET AL., supra note
112, at 14. At the very most, a deal would be substantively unfair if it failed to meet some
measure of reasonableness at the time it was struck, with all of the legitimate information
asymmetries and uncertainties existing at that time.
119
For example, how does a deal that includes a public apology, an agreed-upon change
in corporate policy and a contingent medical monitoring arrangement with term insurance
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consider important and valuable, even though a court would lack the authority
to mandate such terms. Where a mediation agreement includes an apology or
other terms regarding an issue falling outside of the technical boundaries of the
legal dispute in question, comparisons between a mediation outcome and a
hypothetical adjudicative outcome would be extraordinarily difficult. Indeed,
unless the unhappy party can demonstrate some reason to set aside his consent
to the original agreement—for example, fraud, lack of capacity, or coercion—
the fact that the party agreed to it at the time is powerful evidence that he
considered the outcome fair under the relevant conditions. “Fairness” in the
resolution of a dispute is so elusive a principle that it is difficult to imagine a
court permitting a complaining party to use fairness in a measure of damages.
3. Settlement Terms Injuring Non-Parties
Some mediation outcomes will affect parties who are absent from the
mediation process. If a mediation creates a negative impact on a non-party,
that non-party could theoretically seek damages from the mediator who
facilitated the agreement.
120
Such a claim, however, would demand
extraordinary legal creativity in demonstrating the existence of a mediator duty
to non-parties, a breach of that duty and injury stemming from that breach. As
a result, the prospects of claims by nonparties against mediators are severely
limited.
To the extent that mediators owe duties to any parties, such duties are
almost always limited to those disputants engaged in the mediation itself. Only
in narrow circumstances would mediators be duty-bound to consider interests
beyond those of the mediation parties. Two specific examples illustrate
conditions under which a mediator may arguably have some obligation to
consider the interests of parties absent from the mediation. First, a mediator
tackling a public dispute may be charged with protecting against
externalizations onto non-parties. For example, a mediator attempting to
resolve issues surrounding the management of a river system could arguably be
charged also with assuring that the eventual resolution does not merely shift
the harms onto people excluded from the mediation process.
121
Second, some
mediators may be charged with protecting the interests of absent parties
incapable of representing themselves. An easy illustration of such a
compare with a flat payment of $50,000? Both the plaintiff and defendant may conceivably
view the former as superior to the latter, even though a court would not have the authority to
impose some or all of its terms.
120
It is perhaps more likely that a party injured by an agreement between the two parties
would pursue action against the opposing party, rather than against the mediator. Such
actions are beyond the scope of this Article.
121
To the extent that the mediator in question is “charged” with any particular tasks or
duties, the charging party is likely to be governmental in this context. This raises the specter
of immunity attaching to the mediator who performs these duties. For more on the question
of mediator immunity, see Part III.E.
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circumstance would be a divorce mediator charged with considering the
interests of the children who will be affected by the terms of the divorce
agreement.
122
In some circumstances, therefore, it is at least arguable that a
mediator holds an obligation to non-parties.
123
Even if a mediator holds such a duty, pointing to the terms of the settlement
as a means of establishing a breach of that duty is extraordinarily difficult.
What recourse does a mediator have during the course of the mediation if she
believes the parties are heading toward a resolution that may injure absent
parties’ interests? Unless the mediator occupies some official position, or
wields some quasi-coercive power, her choices are limited to persuasion or
withdrawal. Subtle questioning or issue framing may persuade the parties to
rethink their settlement in light of the interests of non-parties. If indirect
persuasion fails to accomplish a change in settlement terms, a mediator could
consider active persuasive techniques, but the obligations to impartiality or
neutrality, sometimes carrying contractual force,
124
may limit the fervor with
which a mediator can make such an argument. Absent persuasion, a
mediator’s sole recourse is withdrawal from the mediation. In most
circumstances, however, withdrawal produces little deterrent effect on
mediation parties. As a general matter, disputants do not require the
mediator’s consent in order to arrive at a resolution. If they reached agreement
on a particular set of terms and the mediator withdrew, nothing would stop
them from subsequently privately agreeing to settle on the same set of terms.
122
See KAN. STAT. ANN. § 23-604(b) (1995) (requiring a mediator to terminate a
mediation if its continuation “would harm or prejudice one or more of the parties or the
children” in a family mediation context); C
OLE ET AL., supra note 18, § 12.2 (“Some states
have provided further protection in the form of mediator duties to raise the children’s
concerns or protect their interests or have given the mediator authority to appoint
representation for the children.”).
123
A third example of a condition in which a mediator may hold an obligation to a
nonparty would be a so-called Tarasoff circumstance. Tarasoff v. Regents of the Univ. of
Cal., 551 P.2d 334 (Cal. 1976). In Tarasoff, a psychologist learned that his patient intended
to murder a woman, Tatiana Tarasoff, in whom the patient was romantically interested. The
psychologist upheld patient confidentiality and said nothing to Tarasoff. The patient
subsequently murdered Tarasoff, and her family brought suit against the psychologist and
his employer. The California Supreme Court held that the psychologist had a duty to
prevent harm to the outside party, even if that meant breaching patient confidentiality.
Tarasoff obligations have been extended to some professions, though not to all. See
Timothy E. Gammon & John K. Hulston, The Duty of Mental Health Care Providers to
Restrain Their Patients or Warn Third Parties, 60 M
O. L. REV. 749, 751 (1995) (listing
various states’ responses to Tarasoff). The UMA addresses the Tarasoff situation by
providing an exception to mediation confidentiality privileges in cases of “a threat or
statement of a plan to inflict bodily injury or commit a crime of violence.” U
NIF.
MEDIATION ACT § 6(a)(3) (2002). The Tarasoff circumstance falls outside the focus of this
section because its obligations stem not from the terms of settlement, but from information
learned during the course of the otherwise confidential conversations.
124
See supra note 63 and accompanying text.
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This limits a mediator’s ability to shape a deal in a way that protects
nonparties’ interests. Unless an aggrieved non-party can demonstrate that the
injury would not have occurred but for the mediator’s acts or omissions, it is
difficult to imagine a mediator being held accountable for a non-party’s
injury.
125
The difficulty of identifying quantifiable injury stemming from the
mediator’s breached duty presents a final hurdle to recovery in the context of
injuries to non-parties. Assuming the agreement is not void for conflict with
public policy, remedies such as rescission would be anomalous, given that
none of the parties to the agreement contests it. Absent rescission, the only
potential remedy would be monetary damages against the mediator, yet these
are unlikely to be available. The difference between the agreement reached in
mediation and the resolution that would have been reached—either
consensually or judicially—is the kind of speculative endeavor unlikely to
enjoy much favor among adjudicators. In the end, the speculative nature of the
breach and injuries claimed will prevent almost all mediation non-parties from
holding mediators liable for the injuries created by mediated agreements.
4. Injuries not Reflected in the Mediation Outcome
In certain circumstances, a mediation party could claim that a mediator’s
inappropriate actions caused an injury that is not reflected in the substantive
outcome of the mediation. An example of such a claim is a party who claims
to have suffered emotional damage stemming from intentional and tortious
mediator behaviors. Conceivably, the injured party could claim that the
infliction of emotional damage had no effect on the outcome of the mediation.
The party may be entirely happy with the settlement reached in mediation, but
may still claim to have suffered compensable injury at the hand of the
mediator. Therefore, damages in a case like this would not depend on the
terms of the settlement. Instead, as described in Part I.B above, the plaintiff
would need to engage in the often-difficult process of establishing injury from
outrageous conduct. Because the injury is often highly speculative and
because proving causation is difficult in light of the parties’ opportunity simply
to leave the mediation session, mediation parties are unlikely frequently to
assert damages lying of the substantive mediated outcome.
125
Commentators have suggested several mechanisms beyond private civil liability for
holding mediators accountable to non-parties and the public. See Lawrence Susskind,
Environmental Mediation and the Accountability Problem, 6 V
T. L. REV. 39, 40-46 (1981)
(noting the possibility of regulatory bodies and public education as means of increasing
mediator accountability in the arena of public disputes); Judith L. Maute, Public Values and
Private Justice: A Case for Mediator Accountability, 4 G
EO. J. LEGAL ETHICS 503 (1991)
(encouraging amendments to ethical standards and calling for public review of private
settlements as a means to assure accountability for the substance of mediated resolutions).
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II. MEDIATORS’ LIMITED AND UNCERTAIN EXPOSURE TO LIABILITY COMES
WITH COSTS
The uncertainty and difficulty of establishing mediator liability poorly serve
parties, mediators and the public. First, the unavailability of compensation
harms genuinely injured parties. Second, mediators have few opportunities to
learn of the appropriate boundaries of their practice, while nevertheless
operating under an ambiguous threat of liability. Finally, the public has only
sporadic insight into the state of mediation practice and the impacts of the
current liability system.
A. Compensation to Victims is Often Unavailable
The fact that mediation parties have a difficult time establishing a legal
claim for compensation based on mediator behavior is not evidence that
mediation parties are never injured by unfortunate mediation practices. The
quality of mediation services, or even the satisfaction of mediation parties,
should not be measured by reference to a lack of lawsuits.
126
While mediation
services may be of generally high quality, too many mediators practice in too
many contexts, adopting too many different approaches, for us reasonably to
believe that no mediation parties are made worse off because of their
participation in mediation. In some cases, participants in a badly conducted
mediation will have lost nothing more than the time they invested in the
mediation and whatever fees they have paid to the mediator. In less fortunate
circumstances, however, participation in a failed mediation may cost disputants
psychologically, strategically and financially. The lack of lawsuits against
mediators reflects not a lack of injury, but a lack of legally cognizable and
recoverable injury.
Because the current system of mediator liability makes recovery against
mediators extraordinarily difficult, a party injured by an inappropriate mediator
action or omission has little realistic opportunity to make himself whole. To
illustrate the effects of the current system of mediator liability, consider a case
in which a mediator convenes a meeting between the plaintiff and the
defendant, asks a few opening questions, and promptly drifts into a lengthy
catnap. Surprised, the disputants make a good faith effort to hammer out a
resolution without significant intervention from the mediator. On occasion, the
slumbering mediator awakes momentarily to interject an unrelated, open-ended
question or a substantive suggestion without serious foundation. The
disputants work for the balance of the day, growing increasingly frustrated
both with each other and with the mediator. At the close of the day, the
mediator jolts out of her seat, announces regrets that the mediation failed to
produce a settlement, and informs the parties that they will receive an invoice
for the mediation services. This mediator’s behavior is shockingly bad and
126
But see Schultz, supra note 5, at 271 (“Disputants are generally satisfied with
mediation services, and thus, as lawsuits are the result of dissatisfaction, claims against
mediators are almost non-existent.”).
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difficult to imagine. Still, it is not clear that the parties would be successful in
a suit against the mediator. Most likely, nothing in the mediator behavior
described here would violate an explicit term of the mediation contract.
Absent breach of a specific term, the parties would need to demonstrate either
negligence or breach of an implied contract term. Both of these claims would
typically require a demonstration that the mediator behavior in question fell
below customary standards—a potentially difficult undertaking in almost any
case.
127
Even assuming the parties were successful in demonstrating causation,
the measure of damages in this case would be quite limited. The parties may
be able to recover the costs of the mediation services.
128
At the margins, they
may be able to recover for the transaction costs associated with participation in
the mediation. The mediator’s fees and the transaction costs involved in
participation would rarely be significant enough to warrant the costs of filing
the claim. It is extraordinarily unlikely that a court would entertain damages as
speculative as an assertion that the mediation prevented a subsequent,
favorable resolution to the case. Absent such damages, the relatively low
recovery possibility makes it economically unlikely that a party will pursue an
action against the mediator. Instead, the injured parties will essentially leave
the injuries to lie where they have fallen. If recovery is uncertain and
impractical in a case as clear as this one, it is no surprise that the current
liability regime effectively denies compensation to almost all victims of
unfortunate mediation.
B. The Boundaries of Mediation Practice Remain Poorly Articulated
Mediation practitioners demonstrate an extraordinary diversity of
approaches to mediation. As mediators continue to adapt, refine, and
experiment with mediation techniques and models, generating a precise and
narrow definition of “Mediation” (with a capital M) is at least difficult, and
perhaps unwise. The practice of mediation is staggeringly and wonderfully
complex and varied. For many reasons, this diversity is at the heart of
mediation’s strength and value.
129
At the same time, the diversity of mediation
127
In certain cases of obvious misconduct, expert testimony regarding customary
practice may not be necessary. See 1 D
OBBS, supra note 20, § 248, at 648-49 (“In a few
cases, courts have considered the negligence of a physician or surgeon to be so obvious or
gross that a jury should be allowed to find negligence even without expert medical
testimony . . . .”). The example of the sleeping mediator may constitute just such a case. If
we remove the question of the mediator’s naps from the hypothetical and leave in place all
of the unhelpful interventions and decisions, however, a dissatisfied party would still face
considerable obstacles in demonstrating the legal inadequacy of the mediator’s services.
128
Most likely, in a case such as this, the parties would simply refuse to pay the
mediator’s fees. If the mediator subsequently brought a suit to recover fees, the parties
would use evidence of the mediator’s slumbering as a defense, arguing that she failed to
provide adequate services under the contract.
129
Not all professions or occupations benefit from broad experimentation by their
practitioners. Creativity and diversity of practice among, for example, accountants
MOFFIT.DOC 2/7/2003 11:44 AM
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practice comes with costs. Consumers may have a difficult time understanding
the services a particular mediator will or will not provide. Policymakers and
academics have a difficult time finding sufficiently comparable practices in
order to conduct legitimate evaluative research. Regulators have difficulty
crafting rules that have acceptable breadth without undermining the flexibility
that is so vital to mediation’s success. Finally, and most relevant to this
Article’s inquiry, the diversity of mediation practice has meant that the
boundaries of acceptable mediator behavior are not clearly defined. Absent
clear boundaries of acceptable practice, the task of defining appropriate and
customary practice is more difficult both for mediators and for dissatisfied
parties.
Many theories of liability require that a complaining party demonstrate that
the mediator engaged in behavior that fell below acceptable standards of
practice, as defined by customary practice among mediators. As described in
Part I.B, the lack of “customary” practices in the mediation field creates a
significant obstacle to parties seeking to prove malpractice, professional
negligence, or a breach of an implied duty of due care. Incapable of proving
that a mediator’s behavior fell out-of-bounds, an injured party faces little
prospect of recovery on these claims.
Perhaps ironically, poorly defined boundaries or limitations create
difficulties for practicing mediators as well. Many within the mediation
community have expressed concern over the prospect of being sued, despite
the historical rarity of such suits.
130
Some have gone so far as to declare the
undermines an aspect of their practice. In contrast, even those of us who have devoted our
professional lives to questions of mediation practice and policy are essentially unable to
prescribe a rigid set of universally applicable practices. An authoritative imposition of a
particular, inflexible practice method would serve neither mediators nor mediation
consumers. We understand more now about mediation processes and their effects on
complex human disputes than we once did, largely because of the broad level of mediator
experimentation. Provided that this experimentation does not cease, mediation practitioners
and scholars will understand more in fifty years than we understand today. Were mediation
a more precise science and the universe of mediation settings more restricted,
experimentation might be irrelevant. No observer of the current state of mediation,
however, would credibly assert that we now know enough about mediation that we need
only to implement it. Instead, the most powerful examples of mediation illustrate ingenuity
stemming not only from disputants, but also from the mediators who must create and adapt
processes aimed at addressing the specific needs of the disputants.
130
JAY FOLBERG & ALISON TAYLOR, MEDIATION: A COMPREHENSIVE GUIDE TO
RESOLVING CONFLICTS WITHOUT LITIGATION 281 (1984) (suggesting that the lack of
lawsuits against mediators is a product of the relatively short history of mediation as a
distinct practice); David Bristow & Jesmond Parke, The Gathering Storm of Mediator &
Arbitrator Liability, D
ISP. RESOL. J., Aug.-Oct. 2000, at 14. My anecdotal experience also
suggests that mediators are increasingly concerned about liability. In mediation trainings,
for example, participants demand to spend an increasing percentage of time considering the
possibility of liability. This interest in liability is even more pronounced among experienced
practitioners.
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existence of a “gathering storm” of lawsuits against mediators, asserting that
mediators already “expose themselves to great risk of liability.”
131
Mediators’
fear of liability is generalized, in my observation, rather than focused on a
specific set of behaviors they believe are likely to create liability.
132
Rather
than fearing that practice X will get them in trouble, many mediators have the
sense that something about the way they mediate may get them into trouble,
but they are not certain which of their practices are the dangerous ones.
Mediators’ generalized fear of liability serves no useful policy, since a
generalized fear of liability does not deter particularly harmful mediation
practices.
133
Under the current system, with its uncertain and unlikely prospect of
mediator liability, an individual mediator also has little opportunity to learn
about the particulars of parties’ dissatisfaction with the mediator’s services.
Unless the parties in the case described above confront the slumbering
mediator about her behavior, the mediator may not easily learn about the
deficiencies in her practice.
134
The parties would almost certainly not retain
131
Bristow & Parke, supra note 130, at 19; see also id. at 16 (“As lawyers, doctors, and
indeed all professionals stood for so long seemingly immune from blame and liability,
before the harsh winds of change struck them, so now our arbitrators and mediators carry on
from day to day while the barometer is falling.”).
132
Several mediators with whom I have spoken recently have described increased
concern about the prospect of being held liable for mediation practices. Importantly,
however, mediators still seem to experience the prospect of liability more as a terrible
lottery than a specific deterrent.
133
If mediators had reason to believe that sleeping during a mediation risked significant
liability, then we might expect to see mediators amending their behavior to assure
themselves that they did not fall asleep on the job—for example, by making caffeine a
centerpiece of their pre-mediation routines. In practice, most mediator behaviors are not so
easily isolated as suspect. The way a mediator frames a question or structures discussion is
the product of at least dozens of separate decisions, some of which are likely unconscious.
Perhaps some mediator practices, such as the binary decision on whether or not to provide a
formal case evaluation, would lend themselves to a liability risk analysis. However, most
mediator decisions fall, at most, only vaguely under the shadow of liability. As a result,
mediators may be lining up to purchase liability insurance, but there is no evidence that they
are altering their practices in any meaningful way.
134
The perhaps hyperbolic nature of the illustration of the sleeping mediator may cloud
the concern about the learning process of the specific mediator. We might reasonably
attribute less than ideal motives—or intelligence, or training—to a mediator who would be
surprised to learn that sleeping was unacceptable. If we simply remove the sleeping from
the hypothetical, however, the mediator’s difficulty in learning becomes clearer. If a
dissatisfied party indicates general dissatisfaction, absent any specific feedback, should the
mediator believe that everything she did was unacceptable? Clearly not. Isolating the
offending practice, however, is a difficult task even in the most controlled of circumstances.
Of course, the question of learning is irrelevant if we assume that the mediator in question
intentionally engaged in misconduct. Still, mediation policies should not reflect an
assumption that mediators aim consciously to sacrifice the interests of disputants. Such an
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the mediator again,
135
but the withdrawal of prospective business is so indirect
and temporally removed from the first mediation that few mediators could
accurately learn appropriate lessons from it. A party might choose not to hire a
mediator for a variety of reasons, only some of which relate to the mediator’s
ability or practice decisions. Even if the mediator knew that the party was
dissatisfied with her services, she would be hard-pressed to discern which of
the hundreds or thousands of decisions she made during the mediation were
unsatisfactory to the party. Furthermore, a mediator quite legitimately may not
view one party’s dissatisfaction with a practice method as evidence that the
method is out-of-bounds. Some mediators might discount the party’s
assessment, reasoning that parties cannot accurately evaluate the utility of all
mediator actions.
136
Others may view the party’s objection as a contextual,
rather than categorical critique. What works in one mediation context may not
be well-suited to another. A mediator might judge that the party’s
dissatisfaction merely signals that the practice might not have been the best
choice for that particular situation. The uncertainty and scarcity of post-
mediation legal complaints perpetuates mediators’ difficulties in discerning the
boundaries of acceptable behavior.
C. The Public Learns Little About Current Practices
A final cost of the current system of mediator liability is that mediation
practices remain hidden from the larger public. As described above, two
important functions of lawsuits are compensating victims and deterring
specific practices. A third function, perhaps less immediately visible, is public
education. Because legal proceedings are almost always a matter of public
record, the litigation process can serve to inform observers about the status of
current practices and about the effects of current legal regimes. A series of
lawsuits challenging particular behaviors would educate the non-mediation
public about the current status of mediation practices as well as incrementally
answer questions about the practices’ acceptability. One of the effects of
public adjudication is the opportunity for aggrieved parties to get their stories
in front of those who hold no immediate connection to the case. In many
cases, wholesale changes to something as complex as a liability regime come
assumption is surely unwarranted both as a descriptive matter and as a basis for policy
formation generally. However, the current system of liability leaves mediators largely
uneducated about the impacts of their behaviors, regardless of the motivation for their
practice.
135
Potentially, the parties will be so unhappy with the mediator’s services that they will
share their impressions with other mediation consumers. Still, the possibility of the
information wrapping back around to the mediator as a means of education are slim. Aside
from anecdotal exceptions, reputational markets for mediators function sporadically, locally,
and with questionable reliability.
136
Parties have a particularly difficult time assessing the propriety of a mediator’s
actions when the mediator is practicing in a non-transparent fashion. For more on mediator
transparency, see Moffitt, supra note 15.
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about only with sufficiently broad public demand for a change. Given the
rarity and uncertainty of lawsuits against individual mediators, observers
outside of a particular mediation have little opportunity to learn about or to
assess mediation behaviors. No public outrage currently exists, and because
the education function of lawsuits is essentially absent from mediation, this
lack of public scrutiny is almost certain to persist.
III. M
EDIATION IS A UNIQUE PRACTICE, DEMANDING UNIQUE LIABILITY
TREATMENT
Mediation parties, mediators and the public would benefit from revisions to
the current mediator liability system. Rather than make a clumsy attempt to
wedge the question of mediator liability into frameworks crafted for non-
mediators, we should recognize at least two factors that separate mediation
from other practices in ways relevant to the question of liability. First,
mediation parties, rather than outside observers, occupy the best position to
judge the effectiveness of a mediator’s services. Second, mediation parties
dissatisfied with the quality of a mediator’s services retain a no-cost or low-
cost, unilateral option of terminating the unsatisfactory mediation. Neither of
these aspects of mediation exists in most other professional or quasi-
professional settings, and their combined effect demands that mediator liability
be treated differently than liability in other contexts.
A. Mediation Parties are Best Able to Assess the Effectiveness of Mediators’
Actions
Mediation parties, as the targets of mediators’ actions, are uniquely
positioned to judge the quality of a mediator’s subjective judgments.
Mediation is not formulaic when practiced effectively. A mediator must be
responsive to the particular needs of the circumstance. The shifting contexts in
which mediation occurs and the variations among parties demand that an
effective mediator adapt her approach from mediation to mediation, or even
during a single mediation.
137
Mediation scholars have yet to articulate a
persuasive taxonomy sufficiently thorough or reliable to remove contextual,
subjective assessment from the practice of mediation. In this sense, mediation
is—and likely will forever remain—an art, at least in part. The mediator’s art,
however, aims to create certain effects on the mediation parties, on their
perceptions, on their thinking, on their analysis of the issues that brought them
137
Mediation is not alone in demanding contextual, subjective judgment. The exercise
of informed discretion is one of the hallmarks of practice in all professions. Whatever other
professional trappings mediation may possess or lack, few would question that mediators
exercise discretionary judgment in dispensing their services. At this time, I do not intend to
enter the debate over whether mediation is or should be considered a profession. For a brief
introduction to the question of mediation’s profession-hood, see Nolan-Haley, supra note
22, at 243-45.
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to mediation in the first place.
138
Examining the quality of a mediator’s
decisions, therefore, demands an inquiry into the effects of the mediator’s
actions. What effects did the mediator’s questions have on the parties’
thinking? What changes in the bargaining dynamic occurred following the
mediator’s intervention? What changes in communication stemmed from the
mediator’s agenda or discussion structure? What was the impact of the
mediator’s effort to demonstrate empathy, or to push the parties’ thinking
about non-settlement alternatives, or to suggest possible settlement terms, or to
invite problem definition, or to reframe the parties’ comments? The impact of
a mediator’s actions on one or more of the parties determines its effectiveness.
Outside observers hold a comparatively limited perspective, one which lacks
the parties’ individual experiences of the mediator’s actions. As a result, those
outside a mediation have a comparatively limited capacity to assess the effects
of particular mediator behaviors. A mediator’s actions exclusively target a
mediation party, making the party uniquely expert in judging the effectiveness
of those actions.
The ability to judge contemporaneously the effectiveness of the mediator’s
services makes a mediation party different from the clients of other
professionals or practitioners. A lawyer’s client does not occupy the best
position to gauge the effectiveness of the lawyer’s discretionary behavior both
because of the technical inaccessibility of the behavior—the client may not
even know what a peremptory challenge is, for example—and because the
lawyer’s behavior is typically aimed ultimately at a target other than the
client—litigators design a closing argument to persuade the jury, not the client,
for example. Similarly, patients do not occupy the best position to judge the
quality of most forms of subjective judgment involved in medical care. A
patient can only assess the effectiveness of the decision to prescribe a new drug
or adopt a particular surgical technique indirectly, based on the decision’s
eventual effects on an illness. In law, medicine, and most other professional
practices, those with similar professional training can best judge the propriety
of a particular action and are appropriately called on to do so as expert
witnesses.
139
Experts, called to testify about the propriety of various
professional behaviors, are all appropriately drawn from outside of the
professional-client relationship in question because they can best assess the
propriety of the actions. In mediation, however, because the behaviors
specifically target the parties, and because their effects on the parties are the
unique determinant of effectiveness, mediation parties themselves occupy the
138
In a different context, I have suggested that mediators’ actions might have effects
alternately on an individual party’s behavior, analysis, or assumptions. Furthermore, a
mediator’s actions might affect the dynamic between the parties. See Moffitt, supra note
15.
139
See 2 DOBBS, supra note 20, § 485, at 1388-89 (noting the use of expert witnesses in
legal malpractice claims); id. § 246, at 639 (noting the use of expert testimony in medical
malpractice cases).
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best position to assess the quality of a mediator’s services.
Mediation parties’ ability to judge the effectiveness of mediators’ action is
not perfect—it is simply better than any other party’s ability to judge
mediators’ actions. Mediation parties, like any other consumer of professional
services, suffer from some degree of information asymmetry in considering the
actions of mediators. Even mediation parties who are repeat consumers of
mediation services have a limited set of experiences against which to measure
a mediator’s conduct. Importantly, however, the relevant consideration for a
mediation party’s assessment of a mediator is not how well the mediator’s
conduct compares with the conduct of mediators generally. Instead, the most
important consideration is whether the mediator’s conduct is helpful to that
party. A party sitting through a mediation conducted by a brilliant practitioner
may nonetheless find the mediation unhelpful in a given context. Whether the
party is able to identify the unhelpful mediation as better or worse than other
mediations is essentially irrelevant to his decision regarding its effectiveness.
Therefore, while outside mediation experts may be best at assessing whether a
mediator is following customary mediation practices, the disputants themselves
can best judge the effectiveness of the mediator’s actions in their context.
B. Dissatisfied Mediation Parties can Vote With Their Feet
If, in assessing the impacts of a mediator’s actions, a mediation party
determines that the mediator’s interventions are unhelpful, the party can simply
terminate the mediation. Even those with different conceptions of mediation
universally embrace the notion of party autonomy. One aspect of party
autonomy or self-determination is each party’s right to decide for himself the
acceptability of a particular settlement.
140
The right of each party also to
decide whether to continue participation in the mediation is necessarily joined
with the right of autonomy. Even in so-called mandatory mediation contexts, a
140
Even among different conceptions of mediation, the preservation of parties’ capacity
ultimately to decide for themselves is central to mediation. Commentators have noted that:
A critical distinguishing factor among the third-party processes [of dispute resolution]
is whether the neutral has power to impose a solution or simply to assist the disputants
in arriving at their own solution. The most common example of the latter is mediation;
the former is commonly called adjudication, whether performed by a court or by a
private adjudicator known as an arbitrator.
G
OLDBERG ET AL., supra note 90, at 3; see also Robert A. Baruch Bush, Ethical Dilemmas,
in MEDIATING LEGAL DISPUTES, supra note 30, § 14.3.4, at 402 (noting that “[m]ediation is
by definition a consensual process, in which both parties must consent to any proposed
settlement,” and that “[i]n order for meaningful consent to exist, there must be an
opportunity for free and informed choice by both parties regarding any options for
settlement”); Robert A. Baruch Bush & Joseph Folger, Transformative Mediation and
Third-Party Intervention: Ten Hallmarks of a Transformative Approach to Practice, 13
M
EDIATION Q. 263 (1996) (referring to “leaving responsibility for outcomes with the
parties” as a hallmark of “transformative” mediation).
MOFFIT.DOC 2/7/2003 11:44 AM
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mediation party can refuse to agree to a particular set of terms.
141
A party can,
subject only to the requirement of good-faith participation in some
jurisdictions,
142
terminate any mediation he finds unhelpful.
This aspect of autonomy functions differently in meditation than in most
professional-client settings, even those that also embrace the basic notion of
party autonomy. A patient can discontinue the services of a physician with
whom the patient is dissatisfied, but the opportunities for doing so are
structurally limited. Part-way through a surgical procedure, a patient has no
opportunity to observe, evaluate, and terminate a surgeon’s services. Doctors
are responsible for securing informed consent from their patients for any
procedures, but the informed consent is typically secured entirely before the
services are rendered, with few opportunities to revisit the consent mid-service.
The same, to a more limited extent, is true of attorneys’ clients. A client may
theoretically maintain the ability to terminate an attorney’s services, but only
rarely would a party be willing to undergo the considerable transaction costs
involved in terminating the services of a lawyer part-way through an
engagement. In mediation, on the other hand, only in exceptional
circumstances would parties be unable easily and cheaply to terminate the
services of an unhelpful mediator.
Only a mediation party competent to judge the quality of the mediator’s
actions, of course, can exercise fully his right to terminate an unhelpful
mediation. Competence to judge a mediator’s actions, in turn, depends both on
the ability to judge information and on access to the relevant information. A
mediation party suffering from a mental impairment cannot effectively judge
the quality of mediator services. Similarly, if a mediator has hidden some
aspect of her service from the mediation parties through fraud, for example, the
missing information may render critical assessment of the mediator’s services
impossible for mediation parties. The true exercise of autonomy depends on
competence and access to information.
Similarly, autonomy functions legitimately in mediation only with the
freedom to discontinue participation in the mediation. If, for some reason, a
party does not know of his right to terminate participation in the mediation, his
exercise of autonomy in arriving at a mediated outcome is impaired. Likewise,
if a mediator somehow impairs a party’s ability to walk away from the
mediation, her actions unacceptably constrain the party’s autonomy. This
conception of autonomy does not suggest that any party with a weak non-
141
See COLE ET AL., supra note 18, § 7:1 (noting that even parties to mandatory
mediation “may ultimately refuse to settle in mediation”).
142
For more on the question of “good-faith” participation in mediation, see id. § 7:6;
Maureen Weston, Checks on Participant Conduct in Compulsory ADR: Reconciling the
Tension in the Need for Good-Faith Participation, Autonomy, and Confidentiality, 76 I
ND.
L. J. 591 (2001) (examining situations in which ADR participants misuse the process, act in
bad faith, or otherwise engage in improper conduct, and proposing a standard for a good-
faith-participation requirement in private ADR, while balancing the competing policy
concerns attending such an obligation).
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settlement alternative lacks autonomy in a mediation.
143
Often, one or more of
the parties to a mediation will perceive their non-settlement alternatives as
unattractive and will, therefore, prefer to avoid terminating the mediation
without a settlement. Self-interested assessment, comparing the possible
benefits and risks of a mediation against the possible benefits and risks
available in actions outside of a mediation, is at the very heart of autonomy.
Having an unattractive non-settlement alternative does not strip one of
autonomy. Rather, autonomy is impaired when a party—either mistakenly or
correctly—perceives that he does not have a choice between mediation and
non-mediation.
Autonomy assumes that each party has both the ability to judge competently
whether the mediation is helpful and the ability to walk away from an
unhelpful mediation. To assume that parties are, as a general matter,
incompetent or constrained in their ability to choose is both disrespectful of
mediation parties and descriptively inaccurate. At the same time, prudence
demands that we guard against mediations taking place in the absence of
competence and autonomy. Accordingly, mediation safeguards such as ethical
standards, consent forms and statutory regulation routinely reinforce both the
notion that parties must be legally competent and able to terminate the
mediation.
144
These safeguards make it appropriate to assume—subject to
rebuttal with contrary information—that a party’s continued participation is the
product of an autonomous choice.
143
Similarly, whatever the elusive concept of “power imbalance” means in the context of
mediation, it cannot responsibly refer to the relative strength or weakness of a party’s non-
settlement alternative.
144
Hawaii’s model standards state that:
A mediator shall inform the participants of their right to withdraw from mediation at
any time and for any reason. If a mediator believes the participants are unable to
participate meaningfully in the process . . . a mediator may suspend or terminate
mediation and encourage the parties to seek other forms of assistance for the resolution
of their dispute.
Program on Alternative Dispute Resolution, Standards for Private and Public Mediators in
the State of Hawaii § X(2) (1986), quoted in Margaret Shaw et al., National Standards for
Court-Connected Mediation Programs, 31 F
AMILY AND CONCILIATION COURTS REV. 156,
200 (1993); see also Shaw et al., supra, Standard 4.2(c) (avoiding referrals to mediation of
cases in which parties lack the ability effectively to negotiate); M
ODEL STANDARDS OF
CONDUCT FOR MEDIATORS Standard VI cmt. (1994) (requiring a mediator to guard against
party incapacity). But see Robert A. Baruch Bush, A Study of Ethical Dilemmas and Policy
Implications, 1994 J.
DISP. RESOL. 1 (naming the recognition of incompetence as a common
ethical dilemma for mediators); Jacqueline Nolan-Haley, Informed Consent in Mediation: A
Guiding Principle for Truly Educated Decisionmaking, 74 N
OTRE DAME L. REV. 775, 779
(1999) (outlining consent-acquiring mechanisms commonly used in mediation, but arguing
that procedural mechanisms such as consent forms guarantee only a “‘thin’ conception of
the principle of informed consent”).
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C. Four Different Mediation Scenarios Demand Different Liability
Treatment
Actions against a mediator alleging inappropriate mediation conduct
demand an inquiry consistent with the unique nature of mediation. First,
mediation parties are best able to assess the effectiveness of a mediator’s
services and are able to vote with their feet. As a result, complaints against
mediators should be treated differently if the parties terminate the mediation
than if the parties carry the mediation through to its conclusion.
145
Second, appropriate mediator liability should depend on whether the
demonstration of mediation misconduct demands reference to customary
mediation practice. Certain claims against mediators allege professional
negligence or malpractice in ways that require a comparison of the mediator’s
actions with the actions of other practitioners within the mediation community.
These claims include the full range of allegations that the mediator’s strategic
decisions during a mediation failed to live up to appropriate standards within
the mediation community. For example, a party may allege that the mediator
failed to ask appropriate questions, constructed a useless agenda, wasted time
on irrelevant matters, made unhelpful interventions, appeared biased, offered
unhelpful suggestions, took lengthy catnaps and so on. Assessing whether the
mediator’s actions in any of these circumstances constitutes professional
negligence or malpractice would require, in part, an inquiry about customary
practices within mediation.
146
I therefore label these claims “Custom-Based
claims.”
147
Other claims of mediator misconduct may be demonstrated by
reference to contractual, statutory, constitutional or tort standards not
dependent on customary or reasonable mediation practice. Claims of
egregious conduct such as intentional infliction of emotional distress, breach of
confidentiality, failure to disclose a conflict of interest, or fraud, for example,
fall within this category. I label these claims “Custom-Independent claims”
145
Parties may cease participation in a mediation for a variety of reasons, many of which
have nothing to do with the quality of the services the mediator is providing. Other reasons
may relate to the mediator, without necessarily signaling the party’s dissatisfaction with the
mediator’s services. For example, a party might terminate a mediation because he has found
a cheaper mediator, or one with greater experience in a particular field. In none of these
circumstances should the fact of termination reflect unfavorably on the mediator. However,
in certain circumstances, overt mediator misconduct or incompetence may prompt parties to
terminate the mediation.
146
In the context of medical malpractice, it has been suggested that in some jurisdictions,
a plaintiff need not refer to customary practice in order to establish professional medical
negligence. See Philip G. Peters, Jr., The Quiet Demise of Deference to Custom:
Malpractice Law at the Millennium, 57 W
ASH. & LEE L. REV. 163 (2000). For the sake of
convenient labeling in this Article, even if the same were true for mediators, I would
nevertheless categorize as “Custom-Based” all professional negligence actions not falling
into one of the categories described in my definition of Custom-Independent claims.
147
I am indebted to Professor Dom Vetri for suggesting the applicability of this
distinction among claims.
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because they do not demand reference to the potentially shifting standards of
customary practice. Custom-Independent claims demand different treatment in
the context of mediation than do Custom-Based claims.
The circumstances in which a party may bring an action against a mediator,
therefore, should be divided into four separate categories, reflecting the unique
mediation-specific factors described above.
148
Table 1 and the text following
describe each type of claim, along with the special obstacles appropriate for
liability claims in the context of mediation.
Table 1
Appropriate Mediator Exposure to Liability
148
A single set of mediator actions could give rise both to a Custom-Based claim and to
a Custom-Independent claim. The possibility of simultaneous claims in each category,
arising from the same mediator conduct, raises the question of duplicative claims. For more
on the appropriate treatment of duplicative claims in the context of mediator liability, see
Part III.D.
Custom-Based Claims Custom-Independent Claims
(Professional negligence,
malpractice)
(Breach of confidentiality,
conflict of interest, infliction of
emotional distress, fraud,
breach of explicit contractual
term, etc.)
Party
Withdrew
from the
Mediation
Liability
: Traditional elements of
a Custom-Based claim.
Damages
: Insignificant because
withdrawal likely causes the
injury to cease.
Liability
: Traditional elements of
the specific Custom-Independent
claim in question.
Damages
: Full traditional
damages available under relevant
claim, since withdrawal would
not necessarily cure the injury
from these claims.
Party
Remained
in the
Mediation
Liability
: Traditional elements,
plus the complaining party’s
continued participation demands
that the party demonstrate his
incompetence, an inability to
perceive the negligence, or a
denial of autonomy that
prevented the party’s withdrawal.
Damages
: Traditional measures
available in Custom-Based
claims.
Liability
: Traditional elements of
the specific Custom-Independent
claim in question.
Damages
: Full traditional
damages available under relevant
claim, except that failure to
withdraw should prevent
complete recovery if misconduct
was visible, party was competent,
withdrawal option was not
impaired, and withdrawal would
have mitigated damages.
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1. A Custom-Based Claim When the Party Walked
A mediation party who terminated the mediation prior to its completion
should be permitted to maintain a professional negligence claim against a
mediator by alleging that the mediator’s conduct fell below appropriate
standards. The fact that the party withdrew from the mediation may evidence
dissatisfaction with the mediator’s services.
149
The leap between a party
finding the services unsatisfactory and a court finding the mediator’s services
to be negligently substandard, however, is significant. A party can best
determine whether a practice is helpful, but only a subset of unhelpful mediator
actions should be deemed negligently deficient according to the standards of
practice within the mediation community. Because mediation is a subjective
enterprise without guarantee of success, it follows necessarily that some
mediator practices will be consistent with customary and reasonable practice
and will not prove effective in the particular context of a given dispute.
Accordingly, a dissatisfied party should have a difficult time sustaining a
Custom-Based professional negligence claim.
Even if a party who withdrew from the mediation can demonstrate that a
mediator’s conduct was negligent, the complaining party should generally
recover only limited damages. The impacts of Custom-Based negligence in
mediation are necessarily narrow in scope. In general, incompetent mediating
can, at most, cause injury during the course of the poorly conducted
mediation.
150
As a result, terminating the mediation, while supportive of a
claim for negligence, effectively limits the damages available to injured
mediation parties. At most, a mediator will be liable for the value of the time
her negligence caused the complaining party to waste. Any prospective injury,
however, should almost certainly be barred in a claim based solely on
negligent failure to adhere to the customary standards of mediation practice.
As a result, even though liability under a negligence theory should be more
easily established when a party withdraws from the mediation, a claim of
Custom-Based professional negligence or malpractice will be unlikely to
produce significant recovery.
2. A Custom-Independent Claim When the Party Withdrew
A party who terminated a mediation and who now claims that the mediator
violated a Custom-Independent duty, as defined above, should face no
obstacles beyond those present in a Custom-Independent claim in any other
context. A claim of mediator fraud, therefore, should require no more than a
claim of fraud against any other person in any other context. Similarly, an
allegation by a party who walked out on a mediation in which the mediator
breached confidentiality, failed to disclose a conflict of interest, intentionally
149
Recall also that a party may terminate a mediation for a variety of reasons unrelated
to the quality of the mediator’s services.
150
See supra Part I.B.1. In contrast, for the reasons described in Parts III.C.2 and III.C.4,
the damages available in a Custom-Independent claim are less limited.
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inflicted emotional distress, or tortiously interfered with contractual relations
should face only those obstacles inherent in the elements of the claims
themselves. For the reasons described in Part I, none of these claims is easily
maintained against a mediator, just as none of these claims is easily maintained
in any other context. Their potential availability, however, would serve
appropriately to deter the most egregious of mediator conduct.
The fact that the party in this type of claim walked from the mediation
should not necessarily limit the damages available in an action against the
mediator. Unlike injuries stemming from Custom-Based negligence, the
termination of the mediation does not necessarily cure injuries caused by more
egregious conduct violating duties defined beyond customary practice. If a
mediator harmfully breaches confidentiality, the fact that the mediation has
ended does not cleanse the effects of the breach of confidentiality. The
disclosed information remains disclosed. Ceasing harassment does not
necessarily cure emotional distress. Similarly, a party may not be able to cap
the harm caused by fraud, tortious interference with contractual relations, or
failure to disclose conflicts of interest merely by ceasing participation in the
mediation. With many possible mediator Custom-Independent violations, the
injury occurs at the time the action takes place, and no subsequent actions can
keep the parties from feeling the behaviors’ ill effects. As a result, a party’s
decision to terminate the mediation should not often limit significantly his
Custom-Independent claims against a mediator.
3. A Custom-Based Claim When the Party Remained in the Mediation
A party who remained through the completion of the mediation and who
subsequently complains of Custom-Based professional negligence or
malpractice should face a considerable challenge in establishing liability.
Typically, mediation parties can best assess whether a mediator is providing
satisfactory service. While not all unsatisfactory mediation services are
negligent, it is difficult to imagine a satisfactory service being negligent. The
fact that a party remained in the mediation signals that the party deemed the
mediator’s conduct to be satisfactory—a contemporaneous judgment
inconsistent with a subsequent assertion of negligence. In order to maintain an
action for negligence in this circumstance, therefore, the complaining party
should have to demonstrate one of three things: (1) the mediator’s negligence
was not perceivable at the time of the mediation, (2) the party’s ability
competently to assess the mediator’s actions was somehow impaired, or (3) the
mediator denied the party the ability to walk away from the mediation. Absent
one of these factors, a party who remained in the mediation should be
precluded from recovering on a Custom-Based negligence claim against the
mediator.
If a party who remained through the completion of the mediation can
establish a Custom-Based negligence claim, the damages available to the party
may be more significant than if the party had withdrawn from the mediation at
the outset of the negligent behavior. Still, the sums available to parties
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alleging negligence should be considerably limited. Conceivably, the
complaining party may recover for the time he lost in the unsatisfactory
mediation, and in this circumstance, lost time could amount to all of the time
spent in the mediation. Recovery beyond lost time, however, requires such
extraordinary speculation that courts should hesitate to allow claims to proceed
on theories that attempt to link a mediator’s negligent failure to adhere to
customary practice with injuries beyond the mediation itself. Accordingly, as
with the circumstance in which the party terminated the mediation, Custom-
Based professional negligence claims stemming from cases in which the
parties remained in the mediation to its completion should be appropriately
unattractive liability vehicles for dissatisfied mediation parties.
4. A Custom-Independent Claim When the Party Remained in the
Mediation
A party who remained in the mediation should subsequently be able to bring
an action alleging a violation of a right established outside of customary
practice. Establishing mediator liability in a Custom-Independent claim should
be difficult, for the reasons described above, though not impossible. The fact
that a party remained in the mediation may not pose any additional obstacle to
the party seeking subsequently to establish a Custom-Independent claim
against a mediator. Any allegation of fraud, breach of confidentiality, breach
of impartiality, or intentional tort poses considerable evidentiary challenges,
but these causes of action appropriately remain available in the context of
mediation without additional impediments to a finding of liability.
The fact that the party now complaining of Custom-Independent misconduct
chose to remain in the mediation should serve to limit the damages available in
certain circumstances. The party’s potential recovery in this circumstance
should be limited if (1) the mediator conduct of which the party now complains
was readily visible to the party, (2) the party’s competence to assess the action
was not impaired, (3) the party’s ability to terminate the mediation was not
impaired, and (4) termination would have prevented further injury. A party
reasonably should be required to take steps to mitigate damages by avoiding
injury or continued injury when such steps readily present themselves.
151
In
151
The so-called “avoidable consequences” or mitigation doctrine is typically applied to
tort claims, but courts generally have not extended the doctrine to include claims of
infliction of emotional distress. See Eugene Kontorovich, The Mitigation of Emotional
Distress Damages, 68 U. CHI. L. REV. 491 (2001) (finding that courts have failed to apply
the mitigation doctrine to emotional distress, and suggesting ways courts can reduce the
moral hazard inherent in emotional distress damages without such a mitigation rule). Most
considerations of mitigation in the context of emotional distress, however, assume that the
mitigating action is temporally disconnected from the conduct creating emotional distress.
Seeing a therapist or taking medication, for example, are common methods of mitigating
emotional damages. The mitigation required by the framework described above, instead,
examines the contemporaneous behavior of the party subjected to the offensive behavior in
question. Most notably, it asks whether the party took steps to end his or her exposure to the
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the case of a mediator behavior violating a Custom-Independent duty,
mediation parties could reasonably mitigate many injuries by terminating the
mediation. If a party can demonstrate, for one of the reasons listed above, that
termination was unavailable or ineffective as a mitigating device, then the
damages should not be limited.
The liability system I describe serves several important policy
considerations. The risk of genuine exposure to Custom-Independent claims
would deter the most egregious mediator actions. Similarly, the availability of
Custom-Independent claims against mediators will help to assure that those
mediation parties most seriously injured by mediator misconduct would have
access to compensation. At the same time, the relative difficulty of mounting a
successful Custom-Based claim should give mediators appropriate repose in
making legitimate discretionary decisions. Furthermore, because Custom-
Based claims are unattractive, we can reasonably expect few Custom-Based
claims to be brought against mediators. This, in turn, will helpfully forestall
the ad hoc development of an inappropriately rigid conception of discretionary
mediation practice. Mediation should remain a highly flexible and diverse set
of processes, free from the kinds of formulaic constraints on practice that
might develop under rigid Custom-Based scrutiny. Finally, the distinction
between parties who terminate the mediation and those who remain in a
mediation appropriately requires a party to protect his own interests within a
mediation. With the inclusion of safeguards protecting those who could not or
could not know to walk out, the joint ideals of party autonomy and mediator
responsibility are best preserved in a system such as the one described above.
D. Custom-Independent Claims Against Mediators Should not be Dismissed
as Duplicative of Malpractice Claims
Courts should not strike as duplicative counts within a complaint alleging
both Custom-Based and Custom-Independent claims stemming from the same
set of mediator actions. In some jurisdictions, when a plaintiff asserts a claim
of malpractice along with certain other theories of recovery arising from the
same set of conduct, courts may dismiss the non-malpractice claims. For
example, in a claim against an attorney asserting legal malpractice and a
second count such as breach of contract, fraud, or breach of fiduciary duty,
some courts may strike the second count as duplicative.
152
The same can occur
offensive behaviors, if such steps were available. In the case of emotional distress, the
distress itself may be significant enough in some circumstances to deprive a party of the
capacity to exercise such autonomy. In other examples of Custom-Independent claims,
however, terminating the mediation will often cease the accumulation of injury.
152
Mecca v. Shang, 685 N.Y.S.2d 458 (N.Y. App. Div. 1999) (striking breach of
fiduciary duty, fraud, gross negligence, and negligent misrepresentation claims as
duplicative of legal malpractice); Brownell v. Garber, 503 N.W.2d 81 (Mich. Ct. App. 1993)
(striking contract-based claim as duplicative of legal malpractice claim, but allowing a fraud
claim to proceed as non-duplicative); Calhoun v. Rane, 599 N.E.2d 1318 (Ill. App. Ct.
MOFFIT.DOC 2/7/2003 11:44 AM
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with claims accompanying medical malpractice.
153
In these contexts, courts
treat the notion of malpractice essentially as an umbrella, under which the
other claims naturally fall. In jurisdictions in which such claim-striking
occurs, courts aim to prevent a plaintiff from “fractur[ing] what is essentially
a . . . malpractice claim into several causes of action.”
154
Mediator liability will function appropriately, however, only if courts refrain
from dismissing Custom-Independent claims as duplicative of a Custom-Based
malpractice claim. While other professions’ liability systems may consider
certain Custom-Independent claims as mere subsets of a larger umbrella claim
of malpractice, such an arrangement would put an inappropriate burden on
plaintiffs bringing claims against mediators.
155
A plaintiff asserting legal
malpractice faces relatively few hurdles in establishing that an attorney’s
conduct fell below professional standards. Because of mediation’s unique
combination of practice variation, confidentiality shields and lack of accepted
practice standards, a claim of mediator malpractice poses far more significant
challenges than do Custom-Based malpractice claims in other professions.
156
In a mediation context, therefore, the Custom-Based claim of malpractice does
not properly serve as an umbrella encompassing Custom-Independent claims.
Because of the difficulty of establishing a breach of customary mediation
practice, courts should not strike Custom-Independent claims as duplicative of
Custom-Based claims, even if the claims arise out of the same set of mediator
actions.
157
1992) (striking count alleging breach of fiduciary duty as duplicative of legal malpractice
claim, while acknowledging the possibility of maintaining the two as separate claims in
certain circumstances).
153
See, e.g., Neade v. Portes, 739 N.E.2d 496, 501 (Ill. 2000) (reviewing four
jurisdictions beyond Illinois in which breach of fiduciary duty claims are dismissed as
duplicative of medical malpractice claims).
154
Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. App. 1998) (striking “breach
of fiduciary duty, breach of the duty of good faith and fair dealing, fraud, [Deceptive Trade
Practices Act] violations, breach of contract, and breach of express and implied warranties”
as duplicative of a legal malpractice claim).
155
For a useful summary of the potential distinction between lawyer malpractice and a
legitimately separate claim of breach of fiduciary obligation, see Christopher Brian Little,
Breach of Fiduciary Duty in The Lawyer’s Professional Liability Claim, COLO. LAWYER,
Nov. 2000, at 101-02.
156
For more discussion on the difficulty of establishing professional negligence in the
context of mediation, see supra Part I.B.1.
157
Courts could easily permit the separate claims to proceed, ultimately disallowing
damage recovery on more than one claim. See JACK FRIEDENTHAL ET AL., CIVIL PROCEDURE
275 (3d ed. 1999) (discussing the general availability of alternative pleadings and theories of
recovery, including assurances that plaintiffs cannot double-recover for the same injury).
Alternatively, if a court must dismiss one or the other, it should dismiss the Custom-Based
professional negligence claim. In the face of a legitimate Custom-Independent claim, the
Custom-Based claim is the lesser of the claims in the context of mediation.
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Certain claims against mediators should, however, continue properly to be
considered duplicative of a Custom-Based claim of professional negligence.
For example, a claim asserting a breach of an implied contractual promise of
due care may be duplicative of a claim of malpractice because both demand the
same reference to the appropriate level of care established by customary
practice.
158
Such a contract claim is, itself, a Custom-Based claim. A breach
of an explicit contractual term, however, would not be Custom-Based, and
therefore should survive a motion to strike or to dismiss on the ground that it is
subsumed by a malpractice claim.
159
An appropriate mediator liability system
demands careful delineation between Custom-Based and Custom-Independent
claims, allowing Custom-Independent claims to survive independent of
Custom-Based claims.
E. Mediators Should Enjoy no Immunity Shield Against Custom-Independent
Claims
For the system of liability described above to function properly, mediators
must not enjoy absolute immunity from suit. Quasi-judicial immunity may
legitimately protect some court-connected officials, but its breadth of coverage
makes quasi-judicial immunity inappropriate in the context of mediation. The
absolute protections of quasi-judicial immunity not only block harassing
lawsuits, but also preclude legitimate and important lawsuits stemming from
egregious mediator misconduct. Precluding legitimate lawsuits costs too much
as a policy matter, particularly in the absence of significant offsetting policy
benefits. Furthermore, despite the D.C. Circuit’s extension of quasi-judicial
immunity to a case evaluator in Wagshal v. Foster,
160
and the same court’s
further extension of that ruling to include mediators, common law
constructions of immunity do not warrant its general extension to mediators. If
any degree of mediator immunity is warranted, statutory qualified immunity
better protects the legitimate interests of court systems, mediators, mediation
parties and the public.
The decision in Wagshal, described in Part I.B, overextended the common
law concept of quasi-judicial immunity by shielding a neutral case evaluator
158
See, e.g., Schweizer v. Mulvehill, 93 F. Supp. 2d 376 (S.D.N.Y. 2000) (striking a
breach of implied contractual promise to exercise due care as duplicative of an action in
malpractice).
159
In some circumstances, a professional may provide specific contractual promises
regarding the services to be rendered. In such cases, even in jurisdictions that typically
strike contractual claims as duplicative of malpractice claims, these contract-based claims
are allowed to stand. Compare Brownell v. Garber, 503 N.W.2d 81, 84 (Mich. Ct. App.
1993) (disallowing a contract action separate from a legal malpractice claim because the
plaintiff merely alleged that the lawyer promised to “render competent tax advice”), with
Stewart v. Rudner, 84 N.W.2d 816 (Mich. 1957) (allowing a contract claim to proceed
separately from a medical malpractice claim in a case in which a doctor promised that he
would deliver a baby via caesarian section but failed to do so).
160
28 F.3d 1249 (D.C. Cir. 1994).
MOFFIT.DOC 2/7/2003 11:44 AM
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from a lawsuit. While the Wagshal court cited correctly the Supreme Court’s
Butz v. Economou test,
161
the Butz test does not properly support extending
quasi-judicial immunity to cover the functions of a neutral case evaluator. The
first component of the Butz test requires that the actions in question be
sufficiently judicial in nature. Case evaluators share some aspects of their
practice with judges. For example, both may inquire about the facts
underlying a case, assess legal and factual arguments, and arrive at
independent judgments. However, case evaluators’ procedural powers and
ultimate products are sufficiently distinct from those of a judge that case
evaluators’ actions should not be labeled judicial. In Butz, the Supreme Court
considered the nature of hearings examiners and administrative law judges,
describing their work as “functionally comparable” to that of a judge. “[They]
may issue subpoenas, rule on proffers of evidence, regulate the course of the
hearing, and make or recommend decisions.”
162
A case evaluator performs
none of those functions, with the possible exception of regulating the course of
a hearing, but then only to the extent that a case evaluation session is
considered a hearing. Judges vary in their willingness to engage in less
traditional
163
settlement-promoting activities during settlement conferences.
164
Current visions of case management grant judges broad, but not unbounded,
discretion in seeking to secure a settlement of the matters pending before
them.
165
However, the Wagshal court generalized the fact that some judges
161
Id. at 1252 (citing Butz v. Economou, 438 U.S. 478 (1978)).
162
Butz, 438 U.S. at 513 (finding that defendant federal officials were entitled only to the
qualified immunity available to their counterparts in state government, and not absolute
immunity).
163
At least one scholar argues that the trend away from “traditional” judicial roles and
toward judicial “management” in the United States is a product of the late twentieth century.
See Judith Resnick, Managerial Judges, 96 H
ARV. L. REV 374 (1982) (describing the new
“managerial” role of judges as providers of informal dispute resolution and case
management, and criticizing this role as a form of judicial activism that threatens to redefine
long-held standards of what constitutes rational, fair, and impartial adjudication).
164
See Carrie Menkel-Meadow, For and Against Settlement: Uses and Abuses of the
Mandatory Settlement Conference, 33 UCLA L. REV. 485 (1985) (exploring theories of the
advantages and disadvantages of mandatory settlement conferences; discussing how such
conferences can be conducted to maximize their usefulness without seriously threatening the
appropriate role of judges in formal adjudication; and reviewing the history and current
practice of settlement conferences).
165
As a general matter, “it is not a mark of improper bias for a judge to make comments
regarding the court proceedings before him or her, unless the comments are so extreme that
they show the judge is unwilling to consider further evidence or legal arguments.” S
HAMAN
ET AL
., supra note 60, at § 4.07. The challenge for courts has been to articulate more
precisely the boundaries of proper judicial settlement conduct. See, e.g., Dodds v. Comm’n
on Judicial Performance, 906 P.2d 1260 (Cal. 1995) (criticizing as coercive and unjudicial,
but declining to censure judge for, securing settlements by means of an “assertive” judicial
style that included interruptions and yelling); In re Mertens, 392 N.Y.S.2d 860 (N.Y. App.
Div. 1977) (censuring a judge for failing to maintain impartiality when the judge threatened
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have “intensive involvement in settlement” to suggest that any activity
undertaken to facilitate settlement is sufficiently judicial in nature to warrant
immunity.
166
A judge performing his or her judicial function in conducting a
settlement conference would be shielded from personal liability by judicial
immunity, even in cases of extraordinary misbehavior. Such is the nature of
judicial immunity. The fact that a judge would receive immunity, however,
does not then mean that anyone doing anything for which a judge would be
immune should also enjoy immunity.
167
Instead, the proper inquiry is whether
the behavior is sufficiently central to the judicial function. In Wagshal, the
case evaluator’s behavior was sufficiently distinct from any judicial function to
preclude satisfaction of the first prong of the Butz test.
Similarly, the circumstances in Wagshal did not clearly satisfy the second
requirement of Butz regarding the extension of quasi-judicial immunity.
According to the second prong of the Butz test, quasi-judicial immunity should
extend only when a threat of future harassment or intimidation by litigants
jeopardizes the independence of the actor in question.
168
Because a case
evaluator makes an essentially singular judgment at the conclusion of her
service, she might arguably be susceptible to intimidation. A party who
successfully intimidates a case evaluator might receive a more favorable
evaluation at the close of the evaluator’s service. Therefore, if a threat of
litigation existed, a case evaluator’s independence would be compromised.
to report parties and attorneys the judge believed were not bargaining in good faith). In one
interesting case, a trial court judge threatened parties during a settlement conference that if
they refused to settle prior to trial but subsequently settled for essentially the same amount
suggested in conference after trial had begun, he would sanction the dilatory party. The
parties failed to settle in the conference, proceeded to trial, and settled after the first day. On
appeal, the trial court judge’s sanction was reversed as improperly coercive. Kothe v.
Smith, 771 F.2d 667 (2d Cir. 1985); cf. Resnick, supra note 163, at 430 (arguing broadly
against judges’ role in the “management” of cases, and arguing that “[h]aving supervised
case preparation and pressed for settlement, judges can hardly be considered untainted if
they are ultimately asked to find the facts and adjudicate the merits of a dispute” (citation
omitted)).
166
Wagshal, 28 F.3d at 1253.
167
For example, in Mireles v. Waco, 502 U.S. 9 (1991), the Supreme Court extended
judicial immunity to cover the actions of a judge who allegedly ordered an attorney to be
brought before the court “with excessive force.” These actions, taken by a private citizen
would amount to battery. Cf. id. at 14 (Stevens, J., dissenting) (finding that “ordering a
battery has no relation to a function normally performed by a judge”). No one would
seriously argue that anyone ordering a battery should be entitled to quasi-judicial immunity
merely because a judge might be shielded from immunity for ordering a battery from the
bench.
168
The Supreme Court’s interest in precluding lawsuits against judges is to avoid a
situation in which lawsuits “would contribute not to principled and fearless decision-making
but to intimidation.” Pierson v. Ray, 386 U.S. 547, 554 (1967) (finding that the common
law immunities given to judges and police officers are available against an action under 42
U.S.C. § 1983).
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The Waghsal court assumed the existence of such a threat, asserting that
disappointed litigants are “likely” to seek to “recoup their losses, or at any rate
harass” a case evaluator following an unfavorable case evaluation.
169
Despite
this assertion about the likelihood of litigation, even in jurisdictions without
immunity protections for case evaluators, no reported lawsuits exist against
case evaluators or others lacking the capacity to render binding decisions.
170
To declare the second prong of the Butz test satisfied on an asserted but
empirically unwarranted fear of harassing lawsuits does not warrant extension
of the Supreme Court’s quasi-judicial immunity framework.
Finally, the procedural protections in place to guard against case evaluators’
misconduct do not satisfy the third prong of the Butz test. The third prong of
the Butz test asks “whether the system contains safeguards which are adequate
to justify dispensing with private damages suits to control unconstitutional
conduct.”
171
The D.C. Circuit pointed to the opportunity for Wagshal to seek
the judge’s recusal as evidence that sufficient protections exist. This misreads
the requirement for procedural protections and focuses too narrowly on the
specific facts in the Wagshal case.
172
Wagshal asserted that Foster’s disclosure
created injurious bias in the trial judge. The D.C. Circuit appropriately noted
that a request for recusal could at least theoretically cure this particular
injury.
173
The Butz test does not demand an inquiry about the specific injury,
169
Wagshal, 28 F.3d at 1253. The Wagshal court acknowledges that a “case evaluator
makes no final adjudication,” but asserts that the case evaluator’s role as “the bearer of
unpleasant news” will make him or her the target of litigation. Id. The D.C. Circuit treats
the second prong of the Butz test as an entirely theoretical matter, rather than demanding an
empirical foundation. Many actors, both official and unofficial, may bear bad news to
litigants regarding their legal prospects. Even if case evaluators were the only link in the
chain of actors delivering bad news to a disappointed litigant, given the nature of non-
binding dispute resolution, the Wagshal court assumes too much in asserting that case
evaluators would face harassing and intimidating exposure to lawsuits.
170
Wagshal’s lawsuit, the only lawsuit on record, cannot stand as evidence that a risk of
lawsuits exists. If the very lawsuit that gives rise to the Butz inquiry is sufficient to satisfy
the second prong of the Butz test, then the test itself becomes bizarrely circular. More
likely, the D.C. Circuit intended to dispense with any empirical examination of the
likelihood of litigation. Certainly, one need not demonstrate a historical pattern of litigation
in order to establish the likelihood of a prejudicial fear of litigation. Still, in the face of an
utter lack of post-evaluation litigation, the court should not have hinged its extension of
immunity on its own bold assertion that such litigation was “likely.”
171
Wagshal, 28 F.3d at 1252.
172
At a minimum, the D.C. Circuit’s reading of the third prong of the Butz test is too
narrowly tailored to support the court’s sweeping conclusion regarding the extension of
quasi-judicial immunity to all case evaluators and mediators within their court system.
173
It is not clear that the judge in this case would have recused himself, if such a request
had been made. Judge Levie asserted, “I don’t know what [Foster’s] opinions are,” even in
the face of a communication from Foster to Levie strongly hinting that Wagshal was to
blame for non-settlement. Id. at 1251 (describing a telephone conference between Judge
Levie and Wagshal’s counsel). If Judge Levie indeed believed that he knew nothing of
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however, but rather an inquiry about the availability of protection against
misconduct from one performing the function in question.
174
If Foster had
breached confidentiality in a public statement, rather than in communication
with the judge, for example, judicial recusal would do nothing to cure the
injury to Wagshal.
175
Short of civil damages or a creative form of injunctive
relief, nothing would compensate Wagshal for, or protect Wagshal from,
Foster’s injurious public disclosure. The Butz test requires that all three prongs
be satisfied before quasi-judicial immunity will be extended. In Wagshal, none
of the three prongs was satisfied appropriately. Both policy and common law
interpretation, therefore, place the D.C. Circuit’s blanket application of quasi-
judicial immunity to case evaluators under suspicion.
Even if quasi-judicial immunity extended properly to cover the functions of
case evaluators, neither the circumstances nor the relevant policy
considerations warranted the D.C. Circuit’s extension of those protections to
include mediators. Mediators’ actions, to the extent that they differ from a
case evaluator’s actions, are even less judicial. Mediation typically builds on
an inquiry into a party’s interests underlying the complaint; traditional
adjudication does not. Facilitating open, interactive, unstructured dialogue
forms the basis of solid mediation; this is reversible error when performed
from the bench. Demonstrating empathy for the plight of a disputant,
addressing his emotional needs, and helping to craft creative solutions that go
beyond the narrow boundaries of the legal dispute all form a part of mediation
practice; none of this constitutes a classically-defined judicial function.
176
The
first prong of the Butz test, therefore, weighs against extending quasi-judicial
immunity to mediators.
Similarly, the nature of current mediation practice makes quasi-judicial
immunity inappropriate under the second prong of Butz. As with case
evaluators, no current evidence supports the proposition that mediators will
Foster’s beliefs, then he would not see grounds for recusal.
174
See Butz v. Economou, 438 U.S. 478, 514 (1978) (cataloguing a variety of procedural
protections aimed at preserving the independence of an administrative hearings officer and
noting the availability of “agency or judicial review” as a remedy for addressing errors).
175
The same would hold true if Foster had committed fraud against Wagshal, or if Foster
had leaked information to Wagshal’s opposing party, or if Foster inflicted emotional distress
upon Wagshal. Recusal stands as a procedural protection only when the injurious act affects
solely the impartiality of the trial judge.
176
In fact, a judge engaged in some of these behaviors risks violating the judicial ethics
proscription against showing bias. The Model Code of Judicial Conduct states that:
A judge must perform judicial duties impartially and fairly. A judge who manifests
bias on any basis in a proceeding impairs the fairness of the proceeding and brings the
judiciary into disrepute. Facial expression and body language, in addition to oral
communication, can give to parties or lawyers in the proceeding, jurors, the media and
others an appearance of bias. A judge must be alert to avoid behavior that may be
perceived as prejudicial.
M
ODEL CODE OF JUDICIAL CONDUCT, Canon 3(B)(5) cmt. (1990).
MOFFIT.DOC 2/7/2003 11:44 AM
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face a tidal wave of harassing lawsuits in a way that would risk jeopardizing
their independence or deter practitioners from offering their services. Even in
jurisdictions that have not extended immunity to mediators, no cases have been
filed against mediators, and the mediation rosters are easily filled.
177
Harassment and the concomitant risk of intimidation support the policy of
inquiring into the risk of subsequent litigation. Intimidating lawsuits pose a
greater risk in the context of judicial deliberations than in the context of
mediation. Few mediation decisions lend themselves well to the influence of
improper threats.
178
Mediators make no final, binding determination at the
close of the mediation, and intimidation will influence only a mediator’s
interim mediation conduct. Furthermore, mediators can easily terminate their
participation in a mediation, rendering any threat essentially un-intimidating.
At most, therefore, a party’s intimidation might produce the cessation of a
mediation, a result the party could obtain on his own simply by terminating
participation. Therefore, judges face a greater risk of intimidating harassment
than mediators. Correspondingly, the second prong of the Butz test should
demand a greater likelihood of lawsuits for mediators than for judges.
Finally, the procedural safeguards demanded by the third prong of the Butz
test are notably absent in most examples of mediator misconduct. Mediators
render no official decisions subject to review by a court. In fact, aside from the
indirect evidence of the binary submission either of an agreement reached in
mediation or of a notice of failure to settle, most courts know nothing at all
about what a mediator does. In all but the most extraordinary circumstances,
confidentiality shields a court from knowing anything about specific mediator
conduct. If a mediator commits fraud or breaches confidentiality, no court will
stand as protection unless the mediator is subject to suit. While a party may, of
course, terminate the mediation, no procedural mechanisms protect the party
who cannot cure an injury through termination. Courts should decline,
therefore, to extend quasi-judicial immunity to mediators.
If any form of immunity is justified for mediators,
179
it is qualified
177
Indeed, my anecdotal impression of mediation rosters is that they are typically easily
filled, with the availability of mediation providers outpacing the demand for mediation in
many contexts.
178
Surely not all threats of litigation are improper, either legally or from a policy
perspective. A mediation party might say to a mediator, “I consider your proposed press
conference to be a breach of our confidentiality agreement, and if you go forward with it, I
will bring a lawsuit against you.” Discouraging such threats would serve little policy
purpose. In contrast, a party who asserts something like, “I’ll sue you if you refuse to
follow the agenda I have proposed,” would be making a harassing threat. However, the
baselessness of the threat—under any liability regime—would strip it of almost all of its
potential for intimidation.
179
I leave for another inquiry the question of whether qualified immunity is justified in
various mediation contexts. Jurisdictional variation on this matter may be the best outcome,
as it will allow us more and better information about the effects of different mediator
liability regimes.
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immunity. A well-crafted qualified immunity statute could effectively bar only
Custom-Based suits against mediators. Such qualified immunity would
prevent harassing litigation alleging that the mediator failed to perform her job
to the standard reasonably expected from or typically demonstrated by other
mediators. This would allow mediators to exercise relatively unconstrained
judgment on those matters most appropriately within their discretion. Parties
would retain, however, the ability to seek civil redress against mediators who
violate rights articulated beyond custom. Courts should allow allegations of
egregious mediator behavior or of violations of statutory or contractual
obligations to proceed. Under the liability system I propose above, the basic
elements of these claims would present sufficiently high burdens to preclude
recovery in all but the most offensive cases of mediator misconduct. In this
way, if any immunity is extended to mediators, it should preclude only those
cases based on allegations of professional negligence or malpractice.
Mediators should enjoy no immunity from Custom-Independent causes of
action.
C
ONCLUSION
Former mediation parties are not currently using private litigation as a
means to address dissatisfaction with mediators’ practices. The fact that there
have been no successful lawsuits against mediators for their mediation conduct
should not be mistaken as evidence that mediators are not making mistakes
during their service. Instead, the lack of post-mediation legal activity is
principally a product of the extraordinary legal obstacles facing any
prospective plaintiff. Some mediators enjoy immunity from suits. The
difficulty of establishing liability and damages protect mediators who do not
enjoy immunity. The challenge of accessing information related to mediations
further complicates matters. No traditional basis of recovery is readily
available to unhappy mediation consumers and, as a result, lawsuits against
mediators are rare.
The uncertainty and rarity of lawsuits against mediators is, in some ways,
costly. Victims of substandard mediation practices remain uncompensated for
their injuries. Mediators who adopt offensive or harmful approaches to
mediation may never be educated about, much less deterred from, those
practices. Furthermore, the public—including prospective mediation
consumers, potential regulators, and other practitioners—may never learn
about the current state of mediation practice in any meaningful way.
The solution to the lack of lawsuits, however, is not a wholesale broadening
of liability exposure for all mediators. Instead, appropriate liability treatment
demands recognition of some of the unique aspects of mediation practice.
Mediation has very few, if any, practices so universally embraced that they
would be considered customary. As a result, mediators should face significant
exposure only to suits alleging a breach of a duty articulated or established by
something other than customary practice. This would shield mediators from
excessive second-guessing of those mediation decisions that are fundamentally
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discretionary judgments. At the same time, shielding mediators from liability
in cases in which they breach a duty articulated outside of customary practice
serves no persuasive policy. A mediator who engages in egregious behavior,
violates contractual or statutory obligations, or breaches separately articulated
duties should enjoy no legal or de facto immunity from lawsuits.
Simultaneously, courts should favor lawsuits from parties who exercised their
judgment in terminating an inadequate mediation. Wise policy and respect for
autonomy demand deference both to mediators’ subjective judgments and to
parties’ decisions regarding their continued participation in mediations.
