Excellence in mediation requires considerable skill. It also requires that the mediator use those skills in service of values consistent with the values of clients. When selecting, reviewing, or comparing mediators, it's important to pay equal attention to the mediators' values as well as their skills.
How should an IRMI subscriber go about selecting a mediator? Sure, there are some stock questions about a mediator's prior experience and training. A mediator has to have a track record and demonstrated skill. We all know that. But for the IRMI reader, there are some other, and special, inquiries as well. You want a mediator who shares your basic values. Fortunately, there are some easy ways to tell.
Prospective Waiver of Liability
A good start is the mediator's "confidentiality agreement." The forms used by many mediators across the country are pretty similar, having been borrowed back and forth from each other. And they contain some surprising statements that have nothing to do with confidentiality. Most particularly, look out for this sentence:
All parties agree that the mediator has no liability for any act or omission in connection with the mediation. This statement—a "prospective waiver of liability"—demonstrates that the mediator does not share the IRMI subscriber's basic values. Let's be clear about exactly what this sentence means. Unvarnished, here it is:
Dear Mediation Participants:
In the unlikely event that I commit malpractice that causes you financial damage—and even though I carry malpractice insurance so that you can be compensated without causing me to suffer financial ruin—it is personally important to me that you do not receive that compensation. IRMI subscribers, and most Americans for that matter, believe that nobody is above the law. The bedrock role of this value in American society is well-summarized in this Wikipedia entry:
The Rule of Law, in its most basic form, is the principle that no one is above the law. Thomas Paine stated in his pamphlet Common Sense (1776): 'For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.'
Even Paris Hilton gets it. Consider her comments during her 2007 imprisonment/probation debacle:
No one is above the law. I surely am not. I do not expect to be treated better than anyone else who violated probation. However, my hope is that I will not be treated worse.
Yet a mediator's "prospective waiver of liability" is precisely the mediator's effort to place herself above the law if her conduct falls below the standard of care and proximately causes damage. If that happens—unlikely though it may be—why should the mediator not be held accountable? If anything goes that far amiss during the mediation, you want a mediator you can hold accountable and from whom (or whose insurer) you can receive compensation.
Liability Waivers and Professional and Public Policy If an IRMI subscriber who practices law in California tried to impose a "prospective waiver of liability" on his clients, that lawyer would be subject to professional discipline by the State Bar for unethical conduct. Rule 3–400 (A) of the California Rules of Professional Conduct provides:
3–400. Limiting Liability to Client.
A member shall not:
(A) Contract with a client prospectively limiting the member's liability to the client for the member's professional malpractice; ...
Elsewhere in the country, lawyers' attempts to impose prospective waivers of liability on clients are disfavored. Compare, Rule 1.8(h)(1), ABA Model Rules of Professional Conduct:
A lawyer shall not make an agreement prospectively limiting the lawyer's liability to the client unless the client is independently represented in making the agreement.
In our society's other great learned profession—medicine—public policy prohibits physicians and hospitals from seeking prospective waivers of liability as a condition of treatment. Tunkl v. Regents of the University of California, 60 Cal. 2d 92 (1963).
These prohibitions reflect what the California Supreme Court just last year called "(t)he traditional skepticism concerning agreements designed to release liability for future torts." City of Santa Barbara v. Superior Court, 41 Cal. 4th 747 (2007), slip op. at 8. Rather, the "public policies underlying our tort system" require that:
as a general matter, we seek to maintain or reinforce a reasonable standard of care in community life and require wrongdoers—not the community at large—to provide appropriate recompense to injured parties. Id., slip op. at 7.
This is consistent with the important national public policies that have always been behind tort litigation:
Negligence rules both regulate misconduct and protect against harm caused by that misconduct. For example, tort liability for negligence has the effect, and to a degree the purpose, of regulating a defendant's future conduct.
It is a policy of negligence law to allow a person to recover for an injury that was proximately caused by another's duty of reasonable care. Observation: The policy reason supporting a cause of action for negligence is to discourage or encourage specific types of behavior by one party for the benefit of another party....
[57A Am. Jur. 2d, Negligence section 1.]
Worse, most mediators are lawyers, and many are still active members of their respective state bars. If practicing law in California, Rule 3–400(A) would bar them from imposing prospective waivers of liability on their law-practice clients. Of course, when mediating rather than practicing law, 3–400(A) does not apply to their conduct. But, by imposing such waivers when mediating, these lawyers are announcing to the world that they have voluntarily lowered their own ethical standards when they change hats from law practice to mediation practice. And, by agreeing to such waivers, litigators are announcing that they have just settled for a professional who adheres to ethical standards less stringent than their own.
Still worse, many mediators' prospective waivers of liability are flat-out unlawful. They purport to release responsibility for "any act or omission," the intentional as well as the negligent. California Civil Code section 1668—unchanged since its adoption in 1872—does not allow this overreaching:
All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his [or her] own fraud, or willful injury to the person or property of another, or violation of the law, whether willful or negligent, are against the policy of the law. Finally, many of these prospective waivers of liability are preceded by a statement that they are imposed "in order to promote communication among the parties and the mediator and to facilitate settlement of the dispute..." In fact, just the opposite should be true. Much of the success of mediation depends on confidential, caucus communications between counsel and the mediator. The effectiveness of the communication is said to depend on its candor, and its candor is said to depend on its confidentiality. What policy best promotes that confidentiality? A policy that lets the mediator know that there are consequences if the confidentiality is breached—the very antithesis of the result of a prospective waiver of liability.
The prospective waiver of liability is a misguided effort at risk management by mediators. It lets mediators off the hook from performing ethically and even competently. It is doubly insensitive in light of the reach of the mediation confidentiality statutes such as the California Evidence Code section 1115 et seq., which precludes introduction of evidence of malpractice that takes place in a mediation, and thus functions as the equivalent of an immunity statute. Compare, Wimsatt v. Superior Court, 152 Cal. App. 4th 137 (2007) and especially Justice Aldrich's critique of the statute, slip op. at 30–32. Regrettably, mediators may not even need a prospective waiver of liability to let themselves off of the hook of competence.
On superficial review, a prospective waiver of liability looks like a pretty good thing to have, so it has survived, reflexively but not thoughtfully, from generation to generation of mediators' form documents. This should not be allowed to continue. Insurers—who employ both litigators and mediators—could stop tolerating prospective waivers of liability from mediators, just as, I am sure, they do not grant prospective waivers of liability to law firms.
Hold your mediators to the same standards as you hold your lawyers, and let the litigators who serve you know of this insistence.& When you require mediators to stand behind the quality of their work, the quality of the services you receive from mediators can only improve.
*A previous version of this article appeared in "Advocate: The Journal of Consumer Attorney Associations for Southern California."