PARTIAL CHECKLIST TO HELP PREVENT MEDIATOR MALPRACTICE

 As you begin each mediation please review the following:

In cases involving attorneys and parties:

1. Has there been an engagement letter which in part clearly defines your role in the mediation?
2. Has the letter spelled out: 
1. the fees which will be charged, including travel and preparation
2. disclosed in writing any conflicts and established waivers with signatures.
3. disclosed any other possible information that could cause later conflict problems
4. disclosed the right to counsel if either or both parties intend to appear without counsel
5. any other information which failure to disclose or discuss may cause issues to arise at the mediation or later, such as any misrepresentations of expertise or none, if required. 
3. Have you delivered the appropriate opening statement, including clarifying your role and those as required under the applicable rules of court in your jurisdiction?  Has confidentiality been discussed with the appropriate exceptions?
4. Have you complied with all ADA requirements? 
5. Is your physical facility or the one you are using secure in all regards, including physical safety, sound proofing etc. 
6. Have any misrepresentations been made in your advertising upon which a claim could be made, e.g. resolution rate, knowledge or expertise, training etc. 
7. Has confidentiality been explained sufficiently so as to both reassure and yet make clear those exceptions which the failure of discussing could be the basis for a party to claim breach, misrepresentation or similar arguments? 
8. In reference to caucusing have you created so much CP (caucus paranoia) that you have given fertile ground for the accusation of bias or some conflict of interest, e.g. so much time with the other side; appearing biased by too much reality testing or too much devil’s advocate? 

SOLUTION:  Continually check in with both sides to take a pulse that all is OK or give an explanation of why it is taking so long.

9. Have you given any information within your expertise that could be misconstrued as legal, psychological, accounting or business advice? 

SOLUTION:  Don’t

10. If this is a multi-session mediation, have any communications between the sessions constituted a possible claim, e.g. discussions without disclosure that at least they happened, not contents thereof.  
11. Have you manipulated yourself into a malpractice case? 
12. Have you witnessed malpractice or any other disclosure during the mediation or the caucus, which might make you a party to concealment?  Do you have additional obligations as a professional in your primary field or as an officer of the court? 
13. Have you participated in any fraud, overreaching or other acts with one side, such as in caucus, that would make you susceptible to a claim of participation or failure to disclose? 
14. Have you participated in the drafting of the agreement sufficiently to make you liable for  giving advice or drafting errors in that agreement?  Will this be sufficient for a claim of practicing law and therefore make you subject to legal malpractice?
15. Has there been any bias in your billing practices, including cancellations etc? 
16. Have you complied with all court requirements in the reporting of the outcome of the mediation to the court? 
17. Have you checked your malpractice coverage? 
18. In very lengthy mediations have you periodically stopped for taking the pulse of the parties and their attorneys?
19.     Solution:  Conduct a voir dire at the time of settlement execution to verify everyone's competency and voluntariness.
20. Have there been any signs to put you on notice that someone has a problem that may be interfering with their competency?  

In addition to the above, when working with parties without counsel, in mediation, consider the additional issues:

A.  Have you very clearly explained your role, both orally and in writing and the limitations you are bound by as a mediator?

B.   Have you explained the role, duties and responsibilities that the parties have to you, including immediate attention to any claims of bias or conflict of interest?

C.  If you use private sessions, have you explained the purpose and that it should not create CP?

D.  If you assist or write up the agreement, have you done so without crossing the line of legal services and advice?

E.   Have you checked again your malpractice coverage?

F.   Have you made clear your fee arrangement and payments?

G.   Have you sufficiently documented the file?

H.   Has any one raised any issues of competency of either party or anything else that could later be used against you? E.g. medications, addictions etc

I.    Have you made clear the right to counsel or any other resource, including experts, tax etc?

J.    Have you explored why one or both do not wish counsel?

K.    Have you covered yourself in reference to full discovery,  financial disclosure etc?

L.   Continually debrief your clients from the opening to before they leave each session.

M.   Do multiple sessions and limit the maximum time per session.

IV.       For further information please feel free to contact Mel Rubin directly.