Campus
Mediators and Civil Liability
Examining
the topic of mediator liability suggests that mediators
are committing actionable errors in the mediation process,
when there is little evidence to support this claim. Disputants
are generally satisfied with mediation services1
and no mediator has ever been successfully sued in North
America2.
Given the growing popularity of campus dispute resolution
initiatives, and “the increasing litigiousness of
society in general, it is not surprising that many administrators
in higher education are nervous about the legal implications
of a new campus mediation program.”3
Therefore, it is prudent to contemplate the situations in
which mediators and campus mediation programs might find
themselves civilly liable. Unless mediators are spared liability
through mediator immunity legislation, mediators could attract
civil liability for: contractual breach, the unauthorised
practice of law, statutory breach, and negligence.4
Legislation
in certain jurisdictions protects mediators from civil liability.
Many States in America have statutes which provide some
form of mediator immunity.5
For example, in 1989 the Florida legislature passed a bill
that grants absolute judicial immunity to court appointed
mediators6
and in Oklahoma a mediator is only liable if s/he exhibits
“gross negligence with malicious purpose or in a manner
exhibiting wilful disregard”.7
In Canada, only Saskatchewan has granted immunity to its
court-connected mediators. In Saskatchewan, no action can
be commenced against mediators in the provincial mandatory
mediation program if the mediators acted in good faith in
carrying out their duties or in exercising their powers
under the statute.8
These statutes, and others like them, proceed on the basis
that mediators, like judges, should be free from civil liability
when acting in their official capacities. The presumption
is that facilitating settlement is part of a mediator’s
‘official capacity’ that can be analogised to
the judicial function.
The
American position on mediator immunity has been solidified
in case law. The two most important cases grant immunity
to a psychologist for behaviour committed during a custody
and access intervention, and to a case evaluator for actions
taken in an ADR process. In the first case, Howard v.
Drapkin,9
the defendant psychologist was hired by the plaintiff to
assist the plaintiff’s family in a child custody and
visitation dispute. In the course of her intervention, the
defendant psychologist stretched a one and a half hour session
into a six hour session, accused the plaintiff of lying,
failed to include material information in her written report,
misrepresented what the child’s doctors had said,
failed to disclose a prior professional relationship with
the plaintiff’s husband, and failed to disclose that
she was a close personal friend of the wife of one of the
partners in the firm that represented the plaintiff’s
husband in the underlying action. The plaintiff sued the
psychologist but the Court of Appeal found that because
the psychologist acted as a neutral trying to effect resolution
of a family dispute, the psychologist was “…entitled
to the protection of quasi-judicial immunity for the conduct
of such dispute resolution services”.10
Quasi-judicial immunity was therefore extended to a non
court supervised, voluntarily selected, and privately compensated
psychologist. Although the court acknowledged “alleged
offensive and dishonest communicative acts”11
on the part of the psychologist, the statutory privilege
protected the defendant psychologist from civil liability.
Campus mediators would, however, be unlikely to benefit
from similar protection. This is because Howard v. Drapkin
concerned a statutorily-protected psychologist intervening
in a custody and access dispute, and most campus mediators
are neither statutorily-protected, psychologists, nor working
on custody and access matters.
In the
second American case, Wagshal v. Foster,12
a case evaluator was granted immunity. In Wagshal v. Foster,
the plaintiff’s case was referred to mandatory neutral
case evaluation pursuant to a court rule, and Foster was
appointed the case evaluator. Wagshal felt he had been made
to settle against his will and thus that his recovery was
far lower than if he had pursued his claim. Wagshal sued
Foster, alleging his right to due process and a jury trial
were denied by the appointment of Foster as case evaluator.
The U.S. Court of Appeals for the District of Columbia assumed
for the purpose of analysis that Foster breached his obligations
of neutrality and confidentiality. However, the court held
that absolute immunity extended to Foster as a court-appointed
case evaluator acting within the scope of his official duties.
The court followed the three step test developed in Butz
v. Economou13
and decided that Foster should be protected by quasi-judicial
immunity.
Page
last updated
11/27/2005
A
project of Campus Conflict Resolution
Resources.
Supported by a FIPSE grant from the US Department of Education
and seed money from the Hewlett Foundation-funded CRInfo
project.
Correspondence
to CMHE Report
(Attn: Bill Warters)
Campus Conflict Resolution Resources Project
Department of Communication
585 Manoogian Hall
Wayne State University
Detroit, MI 48201.
Please
send comments, bug reports, etc. to the Editor.
© 2000-2005 William C. Warters & WSU,
All rights reserved.
