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

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

  • Conduct and liability of the mediator
  • Mediation agreement—limiting mediator’s liability
  • McCosh v Williams
  • Tapoohi v Lewenberg
  • Basis of mediator liability—contract, negligence, misrepresentation, fiduciary duty
  • Contract
  • Negligence
  • Misrepresentation
  • Breach of fiduciary duty
  • Codes of conduct for mediators
  • More...

Coronavirus (COVID-19): The guidance detailing normal practice set out in this Practice Note may be affected by the guidance issued by the Civil Mediation Council (CMC) in relation to the conduct of online and remote mediations and temporary adjustments to its registration scheme in light of the coronavirus (COVID-19) pandemic. For further details, see:

  1. LNB News 14/04/2020 120 Civil Mediation Council publishes guidance for online and remote mediation during coronavirus (COVID-19)

  2. LNB News 14/04/2020 115 CMC announces temporary changes in registration schemes amid coronavirus (COVID-19) crisis

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

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