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Volume 3, Number 2, Feb 2003

Campus Mediators and Civil Liability (page 4 of 8)

Statutory Breach

Campus mediators, like anyone else, can be found liable if they breach a statute. While it is unlikely that many statutes will be directly applicable to campus mediators, there are examples of non-campus mediators being held liable for statutory breach.

In Canada, mandatory mediation legislation has provided the basis for successful actions against roster mediators in Ontario.27 Several Ontario mandatory mediators have been found by courts to be in breach of rule 24.1 of Ontario’s civil procedure statute. For example, in Royal Bank of Canada v. Karrys and Karatzoulis et al.,28 it was held that if a mandatory mediator is assigned to mediate a court-connected case, the mediator must mediate in that particular judicial district. In the case the court sanctioned the mediator for his breach of statute by denying him his usual cancellation fee. Similarly, in Baliotis v. 1093707 Ontario Ltd. et al.,29 the court held that “it is inappropriate for a mediator on the Toronto roster to require the parties to travel out of Toronto to conduct a mediation, unless the parties consent to such other venue.”30 The mediator was censured for his statutory breach by removal from the case, and the mediation was conducted by a different mediator selected from the Toronto roster. Finally, in Riviera Properties Ltd. v. The Royal Bank of Canada and 1013164 Ontario Ltd.,31 the court held that mediators cannot conduct mediation through agents or over the telephone. “By explaining that the mediator had no authority to deviate from Rule 24.1.11(1), which mandates physical attendance, the court described improper mediator conduct.” 32

In the United States, a court found a social worker who provided quasi-mediative services liable for statutory breach in Horak v. Biris.33 In Horak, the defendant social worker held himself out as possessing expertise in counselling and in treatment of emotional and social problems. However, he mishandled the transference phenomenon common in counselling and had sexual relations with the wife during the course of the marital counselling. The Horak court noted that the Illinois legislature provides for revocation of social workers’ licenses if they are incompetent and that there is a code of ethics adopted by the National Association of Social Workers that would abhor this social worker’s conduct. The court noted that the public policy of the state could be gleaned from the statute, and the statute suggested that mental health professionals should not be shielded from the consequences of their actions.34 Thus, the statute, together with policy reasons to avoid shielding social workers from the consequences of their negligence, led the Illinois court to find the social worker liable for breach of statute.

Finally, provincial, territorial, state, and federal business practice legislation could potentially ground campus mediator liability. Business practice legislation generally only applies in commercial settings, and it is doubtful that commercial relationships exist between volunteer campus mediators and disputants. However, some campus mediation services charge institutional or corporate disputants a fee, and in those cases, should be aware of the potential for business practice acts to ground liability.35 Taking Ontario’s Business Practices Act36 as an example, it is clear that a breach of the Act could lead to mediator liability, and might even provide evidence of negligence.37 The Business Practices Act states that an unconscionable consumer representation is an unfair practice,38 and that no person shall engage in an unfair practice.39 In order to determine whether a particular consumer representation is unconscionable, and therefore an unfair business practice, regard must be had to whether the person making the representation “knows or ought to know,

i.that the consumer is not reasonably able to protect his or her interests because of physical infirmity, ignorance, illiteracy, inability to understand the language of an agreement or similar factors,
ii. that the proposed transaction is excessively one-sided in favour of someone other than the consumer,
iii. that the terms or conditions of the proposed transaction are so adverse to the consumer as to be inequitable,
iv. that he or she is making a misleading statement of opinion on which the consumer is likely to rely to his or her detriment,
v. that he or she is subjecting the consumer to undue pressure to enter into the transaction."40

Campus mediators operating on a fee-for-service basis in jurisdictions with similar business practices acts could certainly make unconscionable consumer representations and thereby engage in unfair practices. If a campus mediator knew that a disputant could not understand the language of the mediation, or if the campus mediator should have known that the mediation agreement was one-sided and mediated anyway, the campus mediator could be in breach of business practice legislation. If the campus mediator made a misleading statement upon which the disputant relied, or if the mediator pressured a party to settle, that mediator could be liable to pay a fine.41 Of course, if the mediator made a misleading statement, the mediator could also be liable for breach of the contract to mediate, as it is implied in all service contracts that services will be provided competently.42 If the disputant was induced to enter a mediated agreement due to an unfair practice or to a breach of contract, the agreement could be rescinded and damages could be payable.43 Therefore, if a campus mediator facilitated an agreement between two disputants, and it was established that one disputant settled due to reliance upon the mediator’s opinion, that mediator could be in breach of business practice legislation and/or contract law, the agreement could be rescinded, and the disputant could receive damages. If a court found that the breach of statute or breach of contract also constituted evidence of negligence, the campus mediator could face tortious liability as well.

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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.


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(Attn: Bill Warters)
Campus Conflict Resolution Resources Project
Department of Communication
585 Manoogian Hall
Wayne State University
Detroit, MI 48201.

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