Book contents
- Frontmatter
- Contents
- Acknowledgements
- Preface
- List of tables and figures
- Table of statutes
- Table of cases
- PART I THE PRACTICE OF MEDIATION
- PART II THE LAW OF MEDIATION
- 8 Mandatory Mediation
- 9 Confidentiality
- 10 Settlement Agreements
- 11 State Sponsored Mediation
- 12 Mediation Clauses in Contracts
- 13 Liability in Mediation
- 14 The Future of Mediation
- Bibliography
- Index
13 - Liability in Mediation
Published online by Cambridge University Press: 05 June 2012
- Frontmatter
- Contents
- Acknowledgements
- Preface
- List of tables and figures
- Table of statutes
- Table of cases
- PART I THE PRACTICE OF MEDIATION
- PART II THE LAW OF MEDIATION
- 8 Mandatory Mediation
- 9 Confidentiality
- 10 Settlement Agreements
- 11 State Sponsored Mediation
- 12 Mediation Clauses in Contracts
- 13 Liability in Mediation
- 14 The Future of Mediation
- Bibliography
- Index
Summary
Introduction
The liability of mediators has been a topic of concern ever since the formalisation of the practice of mediation. Although there are no known cases in Australia of a mediator being successfully sued, there is always the possibility that proceedings will be brought against a mediator for either breach of contract or the tort of negligence. Alternatively, a lawyer mediator, acting as a mediator as part of his or her legal practice, could also potentially face sanctions under their respective legal profession Act for unprofessional conduct or perhaps the more serious charge of professional misconduct.
Perhaps one of the reasons that there has not been a case to date where a person has successfully sued their mediator is because if the mediator is doing their job as a classical style mediator – that is, without being evaluative or directive – then the mediator rarely intervenes in the process, thereby allowing the parties to drive the process and arrive at a resolution of their own making. In such a case there could be no valid allegation of mediator negligence, breach of contract or, in the case of a lawyer mediator, unprofessional conduct. In other words, there would be nothing to sue a mediator over if the mediator conducted the mediation according to generally accepted practice, which allows the parties to drive the process and arrive at an outcome themselves.
- Type
- Chapter
- Information
- Mediation Law and Practice , pp. 431 - 458Publisher: Cambridge University PressPrint publication year: 2007