NCJ Number
97038
Journal
University of Cincinnati Law Review Volume: 53 Issue: 3 Dated: (1984) Pages: 731-764
Date Published
1984
Length
34 pages
Annotation
This article argues that the law of fiduciary duties provides an appropriate means for defining the obligations owed by mediators to their clients and demonstrates that the essence of fiduciary duties is in the principle of 'justifiable trust.'
Abstract
Arbitration and mediation are discussed as popular forms of alternative dispute resolution, and differences between them and between arbitrators and mediators are highlighted. The mediator's role is shown to differ from that of the arbitrator both in the substantive variety of the disputes that mediators handle and in mediators' general relationship to the parties involved. Mediators' legal obligations and possible liabilities are explored, and three theories of liability are discussed: tort, contract, and breach of fiduciary duty. The law of fiduciary duties is shown to be the most promising source of rights for litigation. The question of whether fiduciary standards should apply to mediation is addressed, and the consequences of such a determination are considered. The principle of justifiable trust is examined and shown to be readily adaptable to the mediation context. Further, the potential scope of the mediator's fiduciary duties -including to be evenhanded, unbiased, trustworthy, and diligent -- is analyzed, and relief that the court can provide when a mediator breaches his/her fiduciary duty is explored. In short, the law of fiduciary duties applied to mediators is explained to ask little more than that mediators act with common decency. When mediators violate the client's justifiable trust, it is recommended that the law provide some remedy. Included is a list of 163 references.