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Volume 3, Number 2, Feb 2003

Campus Mediators and Civil Liability

by Jennifer L. Schulz*

Introduction

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

Mediator Immunity

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.

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Supported by a FIPSE grant from the US Department of Education
and seed money from the Hewlett Foundation-funded CRInfo project.


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