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.
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.
