How Frequently Does Malpractice Occur in Mediation?

By Donald L. Swanson

California has been studying this question: should a malpractice exception be added to California’s mediation confidentiality laws?

If, for example, a mediating party sues his/her/its attorney for malpractice committed during a mediation session, should statements made during the mediation session be admissible evidence in the malpractice lawsuit?

Or should such statements remain confidential, as currently required by California law?

Here is a 2015 report from that study.

One suggestion in the study report is to leave confidentiality laws as-is on this malpractice question, unless there is “some reliable research” showing that “a substantial problem” exists.  A related conclusion is that there is “scant evidence” of “a systemic problem created by mediation confidentiality.”

Infrequent Misconduct

The study identifies some empirical data on mediation misconduct.  And here is a finding from such data:

Mediation misconduct is relatively infrequent,

–but allegations of such misconduct do occur occasionally, and

–at least a few of those allegations “appear to have some merit.”

Hear no evil, see no evil . . .

Any Remedy?

So . . . what is to be done for the “few” whose claims “appear to have some merit”?

Are we to pretend that we hear no evil, see no evil . . . ?

Are we to tell them something like, “Too bad, so sad . . . you have no redress”?

Such responses would be like a scene from that cinematic masterpiece [sarcasm intended] called, “Dumb and Dumber”:

–One of the dumb guys has just been saved by a bullet-proof vest supplied by the FBI, when he says, “Hey, what if he shot me in the head?!”  To which the FBI agent responds, “That’s a risk we were willing to take.”

Fortunately, the Commission appears to be exploring ways to provide recourse for mediation malpractice claimants while still preserving confidentiality to the greatest extent possible.

Good for them!

What do you think about a malpractice exception to mediation confidentiality?


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