Mediation is a form of alternative dispute resolution (ADR), aiming to assist disputants in reaching a natural, practical and lasting consensus. It is an informal yet structured process in which the mediator does not determine outcome but helps individuals work through and resolve on their own terms. Unlike a judge or arbitrator, the mediator does not decide who is right or wrong or impose a solution.
However, there is always a ha-ho on lack of care, misconduct and competency of the mediator, which includes, for example, a mediator failed to attend at an agreed time for mediation, or that mediator incompetence itself was what caused the termination of the sessions. Complaints about care also include that a party relied on incorrect advice given by a mediator, or the mediator failed to prevent the parties making an illegal, unfair or unworkable agreement or failed to disclose to a party that harm was threatened to them in circumstances where it would be reasonable to expect disclosure. Another complaint is also that a mediator made an unnecessary interference, applied duress or misled a party in some material way.
Absolute immunity enables a person fully avoid trial of a claim made against him so that he is not required to defend a claim by showing that he acted in good faith and without malice. Judges retain immunity for their independence in line with the policy to protect the citizen. This usually extends to others engaged in the administration of justice; witnesses, counsel, court clerks, the jury as well as court appointed mediators.
As with judges, mediators are required to act impartially and independently, without fear or favor. Independence allows creativity and flexibility in approaches to an amicable settlement. Lack of independence makes the surrounding not sensible enough to mediate a case with a backbone. Hence, mediators should be free to conduct mediations as they think appropriate and should not have fear of being sued for an error of result or future harassment, otherwise mediators may be too rigid and legalistic in their approach. The alternative mechanisms will also not fully preserve the mediator’s independence. For example, indemnity insurance can be provided with indemnity for any damages awarded as a result of the suit.
A mediator exercises a non-determinative role. It is the parties who choose whether to remain at the mediation and whether to enter into agreement. In theory, a mediator as a neutral cannot influence the outcome of the mediation and therefore there is no basis for mediator liability. The fact that the mediator is not responsible for the outcome of mediation is the very reason why they should not be liable for any actions based on the terms of any agreement entered into at the mediation. On this basis, it can be argued that mediators should be immune from any civil action arising from the substantive outcomes of the mediation for example, unfavorable bargains or loss of opportunity.
Immunity of mediators ensures finality of agreements reached in mediation. Parties are assumed to have freely reached agreement in mediation and the law favors upholding agreements. Precluding suit against mediators avoids time consuming attempts to reopen mediated matters at courts if the parties’ best interest is to avoid going to court in the first place. The premise is that mediators are not responsible for the substantive outcome of the mediation. Any agreements reached will have been freely entered into by the parties. Mediator immunity will prevent parties attacking the mediator’s conduct as a backdoor way to unsettle a mediation agreement.
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Parties who are unhappy with the mediation outcome can refer to courts. Some argue that no mediator should be held liable if parties agree to settlement terms that do not optimize their interests or fully capitalize on their rights. For example, a mediator can not be held liable for allowing a party to accept a financial proposal that is less favorable to the other party when compared to some other standard.
People feel less confident about granting immunity to a mediator who permits a power imbalance amongst the negotiated parties. Mediator has no duty or capacity to realign or redistribute such imbalances from very practical point of view. Resulting in a liability claim due to mediator’s failure to take action to redress the imbalance shows a gross misunderstanding on the role of the mediator.
It is true that mediators, other than those attached to courts, are not necessarily and always acting in a judicial capacity. Their role is facilitative, neutral, independent and sometimes evaluative. They are not judicial, judgmental, binding, deterministic, discretionary or ministerial. However the capacity is not always a sound yardstick to decide the level of immunity to a mediator as it varies with the case and on what parties really desire. Another argument is that absolute immunity would have been possible to anyone whose duty is integral with the judicial process and so are considered to be figurative arms of the judge, for instance court employees. The author does not deny this position but is it the only case? What about arbitrators! Are they always playing a judicial role?
As mediation is designed in part to encourage parties to settle their differences without reference to a court, it is undesirable to have a situation where the mediator is taken to court by challenging the conduct of mediation. If the administration of justice is the primary policy rationale behind conferring immunity on court appointed mediators, why can not the same rationale be extended to mediators operating away from the court? Although the role of mediator is different to that of a judge to an extent, the debate on immunity can not be denied upfront in terms of the model itself. Whatever model of mediation takes place; he needs absolute protection from civil suits leaving no room for anyone to contest the mediation outcome in courts where the mediator becomes a witness in a lawsuit.
If absolute immunity is granted for court functions only, then the tendency would be some connection to court. It will limit mediation within the court premises. Further, an action against a mediator will require a court to inquire into what happened and what was said during the mediation session. It will undermine the parties’ confidence in the confidential nature of the mediation process, which in turn may prevent the full and open discussions that are such an important feature of mediation.
Another question is why the mediator did not take affirmative steps to prevent a catastrophe when he was in a position to do so? When the parties contemplate in engaging illegal conduct or in breach of a memorandum of understanding, then why the mediator could not prevent? As a result of spearheading attacks while negotiations such as Beslan siege in Russia, mediators failed their mission and returned home. The mediation process does not require a formal determination that ascribes blame for past conduct as a condition precedent to shaping the future. Similarly, the mediation process is not compatible with imposing a legal duty on the mediator to reveal a party’s improper past conduct or threats of future harm.
Let us consider the mediator who intervenes to stop a clash between villagers and military troops stationed close by. Assume that at least one party has engaged in improper conduct or threatens further misconduct. If the mediator is denied access to that information because the party refuses to reveal it to him for fear of being reported, then his efforts will be lost. If one believes there is still a value in trying to resolve such situations without relying on the use of force, then permitting a mediator to operate without exposure to legal liability is indispensable.
Further, the trust which develops during the process allows the mediator to perform ‘a bridging role’. The mediator should investigate not just the issues in dispute, but also the underlying conflict. Mediators have little chance of steering the parties to a settlement without understanding the hidden interests of the parties. Hence, a degree of persuasion is required in order to drive the mediation forward and to explore settlement possibilities from different angles.
Often the main argument against immunity is that it will deny access to compensation or other remedies to rectify harm. If a person suffers loss on negligence of a decision maker, then that injured party should be compensated unless there are clear policy arguments to the contrary. There are other legal provisions that can be invoked to provide protection for parties to mediation, for example designated procedures, disclosure requirements, code of conduct and the requirement to hold minimum qualifications. If the real obstacle to civil action is the difficulty to establish the causal link between the outcome and the responsibility of the mediator, then it is not a matter of immunity.
Parties dissatisfied with the court outcome may not sue the judge but they can appeal the decision. Candidates apply reassessment of results rather than challenging the basis of judgment in exams. There is no equivalent process for mediation because there is no determination to appeal. Further, the causative effect is so remote to prove, and referring mediated cases back in courts would be of no use, so that an off-the-court action such as withdrawal of accreditation, license or professional membership would be more appropriate than a court action for mediator conduct, care and competence.
The primary role of mediators is similar to what judges do when they preside at settlement conferences particularly in terms of