NCJ Number
105084
Journal
Ohio State Journal on Dispute Resolution Volume: 2 Issue: 1 Dated: (Fall 1986) Pages: 47-83
Date Published
1986
Length
37 pages
Annotation
The complexity of the mediator liability issue and the lack of clear standards on this topic suggest the undesirability of mediator liability statutes and the desirability of letting the issue develop naturally from common law.
Abstract
At least nine theories of liability can apply to mediators. The four basic types of liabilities are (1) those similar to those of any businessperson, (2) liabilities pertaining directly to mediation and in which causation and damages are clear, (3) liabilities pertaining directly to mediation and in which causation and damages are unclear, and (4) liabilities a mediator may face by causing harm to third parties who are not participants to the mediation. The mediator's role differs sufficiently from that of others who face liability, but it is difficult to define consistent standards against which to measure the mediator's professional behavior. Courts are likely to regard mediators as mere facilitators, even though their errors may cause damage. Only extremely gross abuses will trigger liability for the practitioner. Thus, mediators do not currently need protection from common law liability. Legislation providing for immunity or changing liability rules could cause a drop in the high standard of the profession. 166 footnotes.