Mediator Immunity
Should mediators have an absolute immunity by law? I. Introduction.
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
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