Comments: When Mediators Cross the Line

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Paul Marrow, Chappaqua NY     01/26/06
The warnings in this article are worth paying attention to. But I'm not so sure about the concerns about a denial of a defence and coverage by the mediator's malpractice carrier. Malpractice is about negligence, not intentional misconduct. And this mediator used bad judgment - the essense of a claim based on negligence. The fact pattern doesn't include anything suggesting intentional misconduct. And I'm not sure that there is privity between the parties and the mediator sufficient to support a claim in either tort or contract. At the very least the carrier would provide a defence and reserve all rights to deny coverage for any judgment. Neverthless, the author is right; stepping over the line serves no one. And it can lead to years of grief and uncertainty as to liability.