I.        Overview

Defining and setting the standards for mediator malpractice (negligence).

A.  What is mediator malpractice?

     1. To whom is the duty owed?

           a. All parties

           b. Attorneys

           c. Third parties, e.g. experts, children, other interested parties.

      2. Who are the clients?

B.   What is the standard for mediator malpractice and how do you measure it?

      1. How do you measure a reasonable standard?

      2. How do you qualify an expert?

C.  How do you determine the damages?

     1. Where there is an agreement?

     2. Can there even be damages when there is no agreement?

     3. Do you apportion? Attorney and/or mediator and/or others?

II.  Causes of Action

A. Creation of the lawyer-client relationship and breaching the mediator cloak of protection

1. Giving advice as to the value of the offers and demands

2. Giving advice and opinions as to the outcome of the case

3. Taking over the negotiations thereby becoming both mediator, attorney and judge.

B. Misrepresentations

1. In representations before the mediation, e.g. high sales pitch “I’ve done hundreds of cases in that area!”

2. Between caucuses, mischaracterizations, intentional or unintentional may constitute a misrepresentation

3. Erroneous transfers of information

 C. Conflicts of interest

1. Traditional conflicts with large law firms

2. Untraditional conflicts within a mediation group

         a.  Knowledge of all colleagues and their practices, i.e. some may still be practicing law and creating additional problems

          b. Judicial conflicts with mediating, e.g. senior judges still sitting

3. Continuous working with the same parties, attorneys or companies and failure to disclose the extent of that involvement.

D. Breaches of Neutrality, Impartiality and Objectivity

E. Failures associated with imbalances of power

1. Competency issues

2. Domestic violence

3. Extortion—mediator involvement as opposed to awareness

Solution: distancing

F. Breaches of confidentiality

1. Between parties

2. About the overall mediation

3. Judicial inquiry

II.       Mediator immunity?

A. What protections are provided the mediator by the state?

 

B. If the mediator is not practicing appropriate mediation within a reasonable standard of care or giving legal advice, has that mediator now begun to practice law, therefore subjecting that mediator to the claim of legal malpractice rather than mediator malpractice?

1. What does this mean in reference to other professionals practicing mediation?

2. If a psychologist is a mediator and gives advise or therapy, can she be sued for that?

 III.      The institutionalization of mediation and ADR ethics and the creation of private causes of action

A. Since some ethical rules require the mediator to be bound concurrently with any and all other professional standards to which the mediator may be bound, how does the mediator protect himself or herself from multiple standards of care that may be in conflict?

1. Which standard trumps?

2. Can one violation be used in the other?

 

B. How does confidentiality or the privilege affect these actions?

1. How much can the waiver or legally imposed waiver go?

2. Is everything in the mediation discoverable, including non-relevant but confidential information, e.g. trade secrets etc.

3. Once breached or waived can the information be used in any other proceeding?

C. Conflicts of interest for mediators

1. Clients of other members of the mediator/lawyer’s firm.

2. Partners within the mediator firm that are conflicted out.

 D. Misrepresentations

1. Competency

2. Transferring information from caucus to caucus