Should mediators have an absolute immunity by law?
Mediator immunity has its roots buried within the common law doctrine of judicial immunity that can be traced back almost four centuries. While the rationale behind judicial immunity is well founded on the public policy’s need for protection of independent and impartial exercise of judgment from the threat of harassing litigation, the issue whether judicial immunity should be extended to parties providing ADR services, regarding their growing popularity, has created a strong debate in theory. As academic debate continues whether mediator immunity is an appropriate area of legislation, courts and legislatures appear willing to extend immunity to mediation providers, in the same way that immunity has been extended to shield officials other than judges. Thus, another question emerging in mediation world is whether mediators should be absolute immune from liability arising out of their mediation practice. This paper examines the appropriate role, extent and scope of mediator immunity. Part I discusses the grounds of mediator liability and the different types of immunity. Part II discusses arguments from proponents and opponents of mediator immunity. Concluding, after observing that absolute immunity doesn’t seem to fit within the mediation practice, Part III provides alternative solutions to absolute immunity. Part I: The fundaments of mediator immunity
I.1. Grounds of Liability
The term mediator liability refers to civil action that could be successfully be brought in the courts against a mediator. The nature of mediation duties per se indicate that mediator exposes himself to high risk of liability, as mediation performance constitutes a highly demanded task and the parties have high expectations upon the successful fulfillment of negotiations. There are many types of mediator conduct that might form the basis of liability and thus several common law claims that the aggrieved party may consider asserting against the mediator. Potential claims that can be brought against a mediator include actions for breach of contract, including breach of implied conditions, false advertising, tortious interference with contract or business relations, fraud, invasion of privacy, negligence or malpractice, defamation, breach of fiduciary duty or breach of confidentiality. I.2 Mediator immunity.
In order to shield mediators from the plethora of potential claims noted above, the courts and legislations have applied judicial immunity to individuals proving mediation services within the context of court-annexed mediation programs. A mediator can claim protection from liability from three possible sources: a) the specific grant of immunity by legislation or statute (statutory immunity), b) the extension of immunity through common law (common law judicial immunity) and c) the grant of immunity by contract, where the parties expressly agree that the liability of the mediator is limited or excluded (contractual immunity). From the above mentioned types of immunity, the arguments concerning the scope of immunity to mediators concern common law and statutory immunity only, because contractual immunity are founded on the consent of the parties to restrict by themselves their right of action against the mediator. Thus, contractual immunity does not raise any issue, as far as it depends on the free choice of the parties. On the other hand, the legal basis of common law and statutory immunity is quite different and mainly refers to court-mandated mediation. In this case, parties usually have no choice in the selection of the mediator. Thus, in such circumstances the debate whether parties should have legal redress in the event of mediator misconduct emerges. As far as statutory immunity concerns, the legislative reactions to immunity issues fall into two further categories; the first is the statute which grants absolute or quasi-judicial immunity from civil actions and the...
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