Mediator Prospective Liability Waivers and Mediator Malpractice
Yesterday I posted excerpts from a Los Angeles Daily Journal article about the ethics (and enforceability) of a mediator-client agreement in which the client waives any right he or she might have to pursue the mediator for malpractice.
Before moving into those waters here, let's brainstorm a little about how mediators might fall "below the standard of care" in a profession that so many claim has no standard of care.
- divulging party confidences made in separate caucus to other parties (both expressly and implicitly by, for instance, "predicting" the other side's likely "bottom line" or future point of impasse);
- drafting the "deal memo"
- without complying with applicable law concerning it's enforcement while suggesting - explicitly or implicitly - that the "deal" reached during the mediation session will be enforceable
- without explaining that conditions precedent orally expressed during the mediation will not be enforceable unless included in that deal memo;
- incorrectly explaining the applicable law about the parties' ability to use statements made during the mediation for purposes other than litigation;
- while holding one's self out to be an expert in a niche area of the law (particularly if the attorneys present are not) incorrectly stating the applicable law to the parties and their counsel; and,
- disclosing to third parties mediation confidences to the detriment of one or more of the parties, i.e., voluntarily testifying in Court without party permission about those confidences.
These are simply the potential malpractice mine-fields that immediately come to mind. If required, I'm certain I could come up with at least a dozen more. They come quickly to mind because I am not without self-protective instincts while mediating for people with a demonstrated ability to bring suit when sufficiently motivated. Perhaps more importantly, whatever I do, I want to do honorably. /*
Which brings us to the question whether a prospective waiver of liability is "honorable" or "ethical" or "enforceable."
Honor and Integrity
Because we define what is honorable for ourselves and ourselves only, my answer to the first question is easy to reach. I would not consider it honorable to attempt to dodge potential liability for negligently doing my job. Part of my job is to encourage the parties to be accountable for their part in the dispute being litigated and mediated. I can honorably do no less. As an officer of the Court for nearly thirty years, I would also consider it dishonorable to intentionally frustrate the litigant's attempt to seek redress in the Court of law to which I am so deeply committed. Nor would I include an arbitration clause in my agreement to provide professional services.
Ethics
To believe there are no profession standards of ethical behavior for mediators is to ignore the contribution of the American Bar Association to the field. In 2005, the ABA adopted Model Standards of Conduct for Mediators. The ABA states that its standards "are designed to serve as fundamental ethical guidelines for persons mediating in all practice contexts."
They serve three primary goals: to guide the conduct of mediators; to inform the mediating parties; and to promote public confidence in mediation as a process for resolving disputes.
The ABA notes in its comments section to the Standards that
the fact that these Standards have been adopted by the respective sponsoring entities, should alert mediators to the fact that the Standards might be viewed as establishing a standard of care for mediators.
STANDARD I. SELF-DETERMINATION
STANDARD II. IMPARTIALITY
STANDARD III. CONFLICTS OF INTEREST
STANDARD IV. COMPETENCE
STANDARD V. CONFIDENTIALITY
STANDARD VIII. FEES AND OTHER CHARGES
STANDARD IX. ADVANCEMENT OF MEDIATION PRACTICE
These standards are discussed in detail at the link above. The violation of many of these standards would provide a mediator malpractice template to any attorney representing a disgruntled litigant seeking to void a mediated agreement or pursue a third party for damages arising from a deal gone bad.
There is nothing contained in these standards that would expressly make a mediator's prospective waiver of liability unethical. Could the following ABA standards do so?
Is a mediator who presents a prospective liability waiver to participants engaged in an act of subtle coercion, particularly if the proposed waiver is presented on a take-it-or-leave-it basis at the commencement of the mediation?
A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. . . A mediator shall not undermine party self-determination by any party for [any self-serving] reason.
Is a mediator who presents a prospective liability waiver to participants in mediation at the commencement of the proceeding raising a question of impartiality, i.e., if the participant refuses to sign or asks to eliminate the waiver provision, can the mediator be truly impartial as to that party?
A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality.
Are mediators who ask parties to sign prospective liability waivers for the first time at the mediation being deceptive in soliciting business?
A mediator shall be truthful and not misleading when advertising, soliciting or otherwise communicating the mediator’s qualifications, experience, services and fees.
Enforceability will be the topic of my next post on prospective liability waivers.
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*/ For a useful short discussion of a means of uniting morality, ethics and legality into a single theory using "integrity" as the unifying principle, see A New Model of Integrity: An Actionable Pathway to Trust, Productivity and Value. (anyone alive at the time of the controversial est training can make what they like of the fact that the largely discredited Werner Erhard is one of the authors of this article)
