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Volume 3, Number 2, February 2003

Campus Mediators and Civil Liability (page 8 of 8)

References

Author Jennifer Schulz is Assistant Director, LL.M. in ADR Program, Osgoode Hall Law School, York University and Doctoral Candidate, Faculty of Law, University of Toronto. The author gratefully acknowledges CCH Canadian Limited for allowing her to use her chapter, “Civil Liability for Mediators” in A.J. Stitt, ed., Alternative Dispute Resolution Practice Manual, (Toronto: CCH Canadian Limited, 2002) at 8561, as the basis for this brief.

1. L. Boulle and K.J. Kelly review a number of Australian, American and Canadian studies on mediation effectiveness and note that all studies confirm that disputants report “high levels” of user satisfaction with both the process and outcome of mediation. See: Mediation: Principles, Process, Practice, (Markham, Ont.: Butterworths Canada Ltd., 1998) at 271-272. However, an empirical study of the campus mediation program at the State University of New York at Albany found that, “[i]nitially, the client’s perceptions are generally positive but they become neutral or slightly negative in the long run. Thus, as time passes, positive feelings diminish.” (Miller, Keith, “The Effectiveness of Mediation in Higher Education” (1987) 3 Journal on Dispute Resolution 187 at 202). Therefore, it is possible that dissatisfied campus mediation users may sue campus mediators or mediation programs.

2. J.L. Schulz, “Mediator Liability in Canada: An Examination of Emerging American and Canadian Jurisprudence” (2001), 32 Ottawa L. Rev. 269.

3. W.C. Warters, Mediation in the Campus Community, (San Francisco, CA: Jossey-Bass Inc., 2000) at 140.

4. Mediators, and other campus conflict managers, could also be sued for: conflict of interest, tortious interference with business relations, breach of neutrality, libel, giving incorrect advice, fraud, false advertising, and breach of fiduciary duty. (See G. Hufnagle, “Mediator Malpractice Liability” (1989), 23 Mediation Quarterly 33). Also, organisations such as the American Association of University Professors [“AAUP”], which helps to resolve disputes between educators and administrators, could face civil liability for substandard practice. For a general overview of the AAUP, see C.C. Russell, “Alternative Dispute Resolution in the University Community: The Power and Presence of the American Association of University Professors (AAUP)” (1988), 3 Journal on Dispute Resolution 437.

5. States with mediator immunity legislation include: California, Colorado, Connecticut, Florida, Hawaii, Iowa, Louisiana, Maine, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Utah, Virginia, Washington, Wisconsin, and Wyoming.

6. Fla. Stat. Ann. Tit. 5, § 44.107 [formerly § 44.307 (1989)].

7. Okla. Stat. Ann., Tit. 12, § 1805(E).

8. The Queen’s Bench (Mediation) Amendment Act, S.S. 1994, c. 20, s. 54.4, and The Queen’s Bench Revision Act, S.S. 1998, c. Q-1.01, s. 44.

9. 271 Cal. Rptr. 893, 222 C.A. 3d 843 (Cal. App. 2 Dist. 1990), [“Howard v. Drapkin”].

10. Howard v. Drapkin at 894.

11. Howard v. Drapkin at 896.

12. 28 F. 3d 1249, 307 U.S. App. D.C. 382 (D.C. Cir. 1994), [“Wagshal v. Foster”].

13. 438 U.S. 478 (1978), 57 L. Ed. 2d 895, 98 S.Ct. 2894, [“Butz”].

14. Wagshal v. Foster at 1252.

15. J.L. Schulz, “Mediator Liability in Canada: An Examination of Emerging American and Canadian Jurisprudence” (2001), 32 Ottawa L. Rev. 269.

16. A.E. Barsky, “A Lawyer’s Guide to Mediation Use: An Unauthorized Sequel” (1993), 31 Fam. and Conciliation Cts. Rev. 376 at 378.

17. See for example, Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147, 31 D.L.R. (4th) 481, 37 C.C.L.T. 117 (SCC).

18. J.L. Schulz, “Mediation, Confidentiality, and Settlement Privilege: The Practitioner’s Dilemma” (1999), 26 Man. J. of Counselling 8.

19. See F. Furlan, E. Blumstein, and D.N. Hofstein, “Ethical Guidelines for Attorney-Mediators: Are Attorneys Bound by Ethical Codes for Lawyers When Acting as Mediators?” (1997), 14 J. Am. Acad. Matrim. L. 267; J.R. Schwartz, “Laymen Cannot Lawyer, But is Mediation the Practice of Law?” (1999) Cardozo L. Rev. 1715; and Rule 4.07 of the Rules of Professional Conduct, promulgated by the Law Society of Upper Canada.

20. F. Furlan, E. Blumstein, and D.N. Hofstein, “Ethical Guidelines for Attorney-Mediators: Are Attorneys Bound by Ethical Codes for Lawyers When Acting as Mediators?” (1997), 14 J. Am. Acad. Matrim. L. 267 at 318.

21. [1996] O.J. No. 4723 (Ont. Ct. J.), online: QL (OJ), [“Boldt”].

22. R.S.O. 1990, c. L.8, s. 50(1).

23.Although R. v. Boldt has come to the Ontario Court of Appeal on a motion, the Provincial Court process remains uncompleted. See R. v. Boldt (January 17, 1997), Toronto CA M19721 (Ont. C.A.), online: 1997 CarswellOnt 1205.

24. 755 F.2d 195 (1985), [“Werle”].

25. The Werle discussion comes from J.L. Schulz, “Mediator Liability in Canada: An Examination of Emerging American and Canadian Jurisprudence” (2001), 32 Ottawa L. Rev. 269 at 281. 26. Werle at 196.

26. Werle at 196.

27. Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as amended, rule 24.1. Rule 24.1 creates Ontario’s Mandatory Mediation Program [“OMMP”]. The OMMP is a court-connected, case-managed, civil, non-family, fee-for-service mediation program, established in Ottawa, Toronto, and Windsor.

28. (July 21, 1999), Toronto 99-CV-165461CM (Ont. S.C.J.), online: LEXIS (Canada, CANCAS).

29. (January 14, 2000), Toronto 99-CV-162060CM (Ont. S.C.J.), online: LEXIS (Canada, CANCAS).

30. (January 14, 2000), Toronto 99-CV-162060CM (Ont. S.C.J.), online: LEXIS (Canada, CANCAS) at 1.

31. (October 28, 1999), Toronto 99-CV-9976CM (Ont. S.C.J.), online: LEXIS (Canada, CANCAS).

32. J.L. Schulz, “Mediator Liability in Canada: An Examination of Emerging American and Canadian Jurisprudence” (2001) 32 Ottawa L. Rev. 269 at 293.

33. Horak v. Biris, 474 N.E. 2d 13, 130 Ill. App. 3d 130 (Ill. App. 2 Dist. 1985), [“Horak”]. The Horak discussion comes from J.L. Schulz, “Mediator Liability in Canada: An Examination of Emerging American and Canadian Jurisprudence” (2001), 32 Ottawa L. Rev. 269 at 289-290.

34. Horak at 19.

35. For example, the University of Windsor Mediation Service, a campus mediation service operated out of the Faculty of Law, University of Windsor, Canada, conducts condominium disputes on a fee-for-service basis.

36. R.S.O. 1990, c. B.18.

37. In R. in Right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205, (1983) 143 D.L.R. (3d) 9 (SCC), the Supreme Court of Canada held that while breaching a statute is not negligence per se, breaching a statute may be evidence of negligence.

38. R.S.O. 1990, c. B.18 at s. 2.

39. R.S.O. 1990, c. B.18 at s. 3(1).

40. R.S.O. 1990, c. B.18 at s. 2(2).

41. R.S.O. 1990, c. B.18 at s. 17(2): “Every person who engages in an unfair practice…knowing it to be an unfair practice is guilty of an offence and on conviction is liable to a fine of not more than $25 000 or to imprisonment for a term of not more than one year, or to both.”

42. Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147, 31 D.L.R. (4th) 481, 37 C.C.L.T. 117 (SCC).

43. R.S.O. 1990, c. B.18 at s. 4(1).

44. M'Alister (or Donoghue) v. Stevenson, [1932] All E.R. 1, [1932] A.C. 562 (H.L.). Campus mediation programs and indeed even supporting universities could also be held vicariously liable for the negligence of campus mediators.

45. Standards of care for mediators might be gleaned from mediator codes of conduct, such as those promulgated by the Association for Conflict Resolution [“ACR”] and Conflict Resolution Network Canada [“The Network”]. These codes indicate that certain minimum standards of professional conduct exist for mediators, so campus mediators would be advised to adhere to them. However, ACR’s code and The Network’s code do not have legal effect unless and until they are adopted in a court of law. A legal foundation must be established in order to develop standards of care for mediators from current codes of conduct. See J.L. Schulz, “Mediator Liability: Using Custom to Determine Standards of Care” (2002) 65 Sask. L. Rev. 163, which recommends the tort law concept of custom as the foundation upon which to develop standards of care for mediators.

46. For sample practice guidelines established by campus mediation programs, see W.C. Warters, Mediation in the Campus Community (San Francisco, CA: Jossey-Bass Inc., 2000) at 249-252. These guidelines, which promote good campus mediation practice, do not as of yet have legal force. With the continent-wide acceptance of the Guidelines for Conflict Management in Higher Education developed under the direction of William C. Warters, there will eventually be uniform, authoritative guidelines for campus mediators. These guidelines could, in turn, provide the legal foundation for a campus mediator standard of care and thus negligence liability for campus mediators could be more easily proven.

47. (1985) 45 R.F.L. (2d) 245, [1985] O.J. No. 1159 (Ont. H.C.), [“Walters v. Walters”].

48. (December 17, 1999), Toronto 99-CV-170916CM (Ont. S.C.J.), [“Martins v. Ali”].

49. Martins v. Ali at 1.

50. Martins v. Ali at 1.

51. 622 S.W. 2d 237 (Mo. App. 1981), [“Lange v. Marshall”]. The Lange v. Marshall discussion comes from J.L. Schulz, “Mediator Liability in Canada: An Examination of Emerging American and Canadian Jurisprudence” (2001), 32 Ottawa L. Rev. 269 at 286-288.

52. Lange v. Marshall at 238.

53. Despite the fact that the court said in theory there was mediator negligence, the court did not hold the defendant liable. Because the plaintiff did not sustain any damage as a proximate result of the defendant’s negligence, the defendant was not liable (Lange v. Marshall at 238). In other words, Mrs. Lange could not prove that ‘but for’ the mediator’s alleged negligence, her litigation-related expenses would not have occurred.

54. 17 Cal. 3d 425 (1976), [“Tarasoff”].

55. W.C. Warters, Mediation in the Campus Community, (San Francisco, CA: Jossey-Bass Inc., 2000) at 143.

56. R. v. Boldt, [1996] O.J. No. 4723 (Ont. Ct. J.), online: QL (OJ).

57. Werle v. Rhode Island Bar Association, 755 F.2d 195 (1985).

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