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Volume 3, Number 2, Feb 2003

Campus Mediators and Civil Liability (page 6 of 8)

The plaintiff was ill with lupus and depressed due to her marital difficulties. She admitted herself to the psychiatric ward of a hospital. The defendant held a conference at the hospital with Mrs. and Mr. Lange and the terms of a settlement stipulation were agreed to. The plaintiff signed the stipulation the day she left the hospital, it was filed the next day, and the petition for dissolution was heard by a judge four days later. The judge took the matter under submission and stated that he would not enter judgment for thirty days. Within those thirty days the plaintiff had second thoughts and sought legal counsel. Ten months later the matter was settled more favourably for the plaintiff. The plaintiff therefore sued the defendant in negligence, alleging that the defendant failed to:

(1) inquire as to the financial state of her husband and to advise her;
(2) negotiate for a better settlement for her;
(3) advise her that she would get a better settlement if she litigated the matter; and
(4) fully and fairly disclose her rights as to marital property, custody and maintenance. 52

The defendant admitted that he did none of the four things the plaintiff complained about and argued he had no duty to do them. He stated that because he undertook to work as a mediator it would be improper for him to do any of the four things claimed to be negligence. Surprisingly, the Missouri Court of Appeals, for the purpose of decision-making, assumed that the defendant did have a duty to do the four things the plaintiff alleged, and that he breached that duty and was therefore negligent.53 The fact that the court was prepared to say that those four failings on the part of someone purporting to be a mediator could be negligence runs counter to current understandings of proper facilitative mediation practice. This assumption, if used as a starting point to help identify the legal duties of a campus mediator and what might constitute mediator malpractice, would radically alter the conventional understanding of facilitative mediation. The overwhelmingly consensus in the North American mediation community is that facilitative campus mediators are not to: judge what a ‘good’ settlement might be, advise disputants, nor commit the unauthorised practice of law by informing disputants of their legal rights. Therefore, Lange v. Marshall, a 1981 decision that radically conflicts with current understandings of facilitative mediation, is unlikely to be followed by a North American court today.

Finally, there may be a duty upon campus mediators and programs in the United States to warn. In Tarasoff v. Regents of the University of California54 the plaintiff’s daughter was murdered by a psychiatric patient. The patient was being treated by a therapist employed by the university. The patient had confided his intentions to kill the plaintiff’s daughter to the therapist, and the therapist did not warn the woman. The court found that if a therapist determines that a patient presents a serious danger to another, the therapist incurs an obligation to use reasonable care to protect the intended victim; the therapist has a duty to warn. Thus, based on Tarasoff, it is arguable that a duty to warn could be imposed on American campus mediators. “Whenever a program is aware of a participant’s propensity to do harm, it has a duty to take reasonable steps to prevent the person from doing so.” 55

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