Blaming the Mediator: Mediator Coercion and Mediator Testimony Cases
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There is little case law detailing the legal consequences of mediator coercion or other misconduct.
In theory, mediators risk complaints and legal action under the theories of civil liability, criminal liability, or the complaint mechanisms of the mediator referral structures or voluntary mediator memberships. Scholars debate the absence of legal action against mediators without true consensus. There are no reported cases where a mediator paid damages to a party, but in dozens of cases, parties attempt to overturn mediated settlements on the basis of coercion, undue pressure, or principles of fairness. Hundreds of decisions address confidentiality issues when mediators give testimony regarding the conduct of participants, discussions during mediation, or mediator conduct. Overall, the number of reported cases involving mediators is steadily rising, but
direct action against the mediator is essentially nonexistent.
The following is a sampling of cases where a mediator’s conduct has been questioned or evidence has been sought from the mediator. Many of the reported mediator coercion cases involve requests to set aside settlements because of the mediator’s actions. Only in one case, however, was a settlement overturned on that basis. In the mediator testimony cases, we learn that the general rule of mediator confidentiality is sometimes disregarded.
FN For a detailed discussion of complaints against mediators, see: Michael Moffitt, Ten Ways to Get Sued: A Guide for Mediators, 8 HARV. NEGOT. L.
REV. 81, 85 (2003).
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