Conduct and liability of the mediator
Conduct and liability of the mediator

The following Dispute Resolution guidance note provides comprehensive and up to date legal information covering:

  • Conduct and liability of the mediator
  • Mediation agreement—limiting mediator’s liability
  • Basis of mediator liability—contract, negligence, misrepresentation, fiduciary duty
  • Codes of conduct for mediators
  • Themes common to the codes of conduct for mediators
  • Mediating cross-border disputes

The mediator is a vital part of the mediation process. If the mediation is to be successful, the parties must trust their mediator and have confidence in their abilities.

When considering the conduct and potential liability of a mediator, consider:

  1. the mediation agreement—this governs the relationship between the mediator and the parties, see below

  2. although mediators are not regulated, several organisations have codes of conduct for mediators to adhere to—see below

Issues for potential consideration include:

  1. conflicts of interest

  2. confidentiality

  3. conduct prior to and during the mediation

  4. the mediator’s involvement in drawing up the settlement agreement

See further below.

If you are unhappy with the professional conduct of the mediator you should:

  1. raise any concerns with the mediator first

  2. if necessary refer to the mediation provider of which they are a member of (if any)

  3. the mediator may also be a member of the Civil Mediation Council which has professional standards

  4. be aware that mediators have professional indemnity insurance

Careful consideration will have already been given to the identity of the mediator. See Practice Note: Choosing a mediator.

Mediation agreement—limiting mediator’s liability

When the parties appoint their mediator, they enter into a mediation agreement with them. This governs the relationship with the mediator. It will include matters such as confidentiality in respect of the mediation and may also include limits or exclusions of liability on