No News (Read: Successful Lawsuits Against Mediators) Is Good News?

Mediators are busy doing important work—and mediators are human and sometimes make mistakes. Without losing sight of the important work mediators do every day within our justice system, this Article offers three observations about the fact that mediators are fallible. It concludes with some normative considerations about how we might think about each of the three observations. First, I summarize research spanning more than two decades of litigation involving mediators. I provide a new taxonomy, derived from actual lawsuits, describing the bases upon which former disputants have complained about their mediators. I suggest that there are examples of at least five different flavors of alleged mediator malpractice, and for each I provide at least one concrete example of a lawsuit filed in recent decades. Second, I demonstrate that although enough claims have been filed to permit the creation of a taxonomy of complaints, such claims remain vanishingly rare. Although millions of disputants have gone through mediations in the last two decades, exhaustive multi-method research has yielded records of fewer than one hundred lawsuits against mediators. And even in those cases that are filed, virtually none of them result in any finding of liability against the mediator. Third, I suggest that six aspects of the current legal landscape serve to provide virtual de facto immunity for mediators. Four of these features are functions of the way the law treats all contract and tort law claims. Two other features of the legal landscape (confidentiality shields and immunity doctrines), however, are unique to mediation. I conclude with a normative observation about mediators’ continued de facto immunity from successful malpractice complaints. I argue that consumers of mediation services, particularly the disputants themselves, ought to have confidence (1) that if they believe they were injured by a mediator, they will have a chance to make their case, and (2) that in the event they are successful with their claim, they will have an opportunity to be made whole. To the extent a trend is discernable with respect to the legal landscape for mediation, the trend is toward even greater protections against claims of mediator malpractice. Mediators may enjoy the status quo and the current trajectory—for now—but I am not convinced that this trend benefits our field or the disputants we serve in the long-term.