Minimizing Mediator’s Own Liability

Should mediators include in their retention agreements a waiver of liability? This would be a clause along the lines of, “The mediator cannot be held liable for any act or omission in connection with this mediation.” A thoughtful article by Bill Quatnam just posted on Mediate. com suggests mediators should think carefully about this. The article, entitled, “Mediator Ethics: Should You Ask for a Waiver of Liability?”, explores the law in several states regarding mediator immunity (it varies), questioning both the enforceability of such clauses as well as whether they’re ethical.

I used to have such a clause in my retention agreement–borrowed from someone, somewhere; it seemed like a good idea at the time. Then I read Jeff Kichhaven’s article in IRMI, “Nix Your Mediator’s Prospective Waiver of Liability,” and was persuaded that this is not good practice for a mediator. Kichhaven suggests that these clauses announce to the world that attorney-mediators “have voluntarily lowered their own ethical standards when they change hats from law practice to mediation practice.”

Michigan does not provide immunity for mediators. It’s unclear whether such a clause would be enforceable in Michigan. The ideal course is for mediators to mediate well so that unhappy parties don’t turn on their mediators, rather than relying on a liability waiver or legal immunity.

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