Exploring mediator liability in negligence

Abstract

Over the past three decades, governments and judiciaries in the common law world promoted mediation as an adjunct to litigation in the reformed civil justice system. Accompanying this trend, people of diverse background jumped on the bandwagon to practise as mediators. Contrary to popular belief, existing legislation specific to mediation does not require practitioners to be accredited. Nor does it articulate the minimum practice standards. It is left in the hands of the industry to regulate the knowledge, skills and behaviour of mediators. The article discusses the prospects for English law to impose a duty and standard of care on mediators based on the principles of tort law. It highlights the problems of negligence-based claims by reference to reported cases in the United States, Australia and New Zealand. It then considers the current tortious response in England and Wales, which is contrasted with the legal position and codes of conduct for mediators presently adopted in America and Australasia, the jurisdictions that have obvious historical links with English law and provide an excellent basis from which to explore its way forward. Finally, it examines the extent of appropriate limits on mediator liability in negligence in terms of causation of damage and quasi-judicial immunity.