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Volume 3, Number 2, Feb 2003

Campus Mediators and Civil Liability (page 2 of 8)

According to Butz, the court must first determine whether the functions of the neutral in question are comparable to those of a judge. Based on Butz, American courts have found the functions comparable: “…the general process of encouraging settlement is a natural, almost inevitable, concomitant of adjudication.”14 Secondly, the Butz test requires American courts to examine whether the nature of the controversy is intense enough that future harassment or intimidation from the disputants is likely for the mediator. Finally, Butz calls for an answer to the question whether there are safeguards adequate to justify dispensing with private damage suits.

Although the court in Wagshal v. Foster found that all three steps of the Butz inquiry were satisfied, the test is not made out in the campus context. Firstly, the functions of campus mediators are not comparable to those of judges. Not only is encouraging settlement not inevitably part of adjudication, but campus mediators do not judge, render decisions, nor perform any other adjudicatory functions. Thus, there is no valid reason to extend immunity to them. Secondly, given that campus mediators do not render decisions, the likelihood of harassment is minimal. While it is true that a disgruntled disputant could cause considerable pain on campus by badmouthing a campus mediator or mediation service, the fear of negative publicity does not merit shielding an unregulated practitioner from civil liability. Finally, other than faculty supervision, there are no formal procedures on most North American campuses to monitor mediator conduct, and thus, campus mediator immunity based on the Butz test is not supportable. Given that immunity for campus mediators is unlikely unless created by statute, campus mediators and mediation programs should be aware that they could attract civil liability for contractual breach, the unauthorised practice of law, statutory breach, and negligence.

Contractual Breach

Most campus mediators do not commence mediation unless disputants have signed a contract to mediate or terms of mediation. However, despite the proliferation of mediation contracts, no mediator has yet been successfully sued on a contract to mediate. There have been no reported suits against Canadian or American mediators for breach of contract,15 despite the fact that “legally enforceable standards for practice can be established by contract between the mediator and the mediation participants.”16

North American common law implies a term into all contracts, which includes contracts to mediate, that all services contracted for will be provided competently.17 Thus, mediators are in breach of their contracts to mediate if they fail to provide competent service, and disputants are entitled to sue them for their provable damages. If mediators wish to escape contractual liability they must adhere to all terms of their contracts to mediate. It is essential that disputants are not promised more than mediation can deliver. If a mediator makes an express or implied promise about the process or results of mediation, the mediator could be contractually liable if the process or results differ from what was promised. Thus, provided campus mediators maintain a purely facilitative role, leave all decision-making in the hands of the disputants, and adhere to the terms of their contracts to mediate, the possibility of civil liability is greatly reduced.

If however the mediator breaches a term of the contract to mediate, for example by not maintaining the confidentiality of the mediation session, then liability for breach of contract could ensue. Many mediators promise that the mediation session will be completely confidential, but are not able to adhere to that promise.18 Campus mediators may be required to share the details of mediation sessions with faculty supervisors or other campus mediators, or write about mediation sessions they have participated in as evaluation components of their mediation programs. In other situations, for example in the case of suspected child abuse, disclosure or breach of confidentiality is often mandated by law. Thus, although no mediator has yet been successfully sued for breach of contract, campus mediators should be aware that if they promise to maintain disputant confidentiality in a contract to mediate, they could be civilly liable if they break that promise. It is possible to include waivers in agreements to mediate which limit or remove mediator liability for errors such as breach of confidentiality. However, as no cases have yet been tried in this area, it is unclear whether or not a waiver limiting liability would protect a campus mediator for breach of confidentiality. Campus mediators are encouraged to research the use of waivers in their jurisdictions, and to consider the purchase of liability insurance if their university’s general policy does not cover their mediation program.

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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.

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