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:
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
