National mediator ethics expert Mel Rubin has pointed out that “mediator malpractice” actions are rare. Instead, when a mediator behaves incompetently or unethically, it shows up as a dispute between the parties regarding the enforceability of the mediated agreement. Motions to set aside agreements are, he says, in reality a mediator malpractice action. Dispute Resolution Journal, Fall 2010.

Michigan’s first published case on enforceability of mediated agreements, Vittiglio v Vittiglio (Michigan Court of Appeals Nos. 303724; 304823, July 31, 2012), proves Rubin’s point. According to the Court of Appeals opinion, the mediator did a couple things that many mediators would consider inappropriate, but the mediator was not sued. Instead, the parties engaged in protracted litigation regarding whether their mediation agreement should be enforced.

One of the mediator’s questionable actions concerned the possibility of domestic violence. The wife alleged that one of the reasons she consented to the mediated agreement was because she feared her husband. She argued that her consent was not valid because the husband had threatened in the past to kill her, and that she was in extreme fear of him. Presumably this allegation did not surface prior to the mediation – but it should have, because domestic relations mediators are required to administer a domestic violence protocol (SCAO Model Screening Protocol) to elicit any fear one party may have of the other that could affect that party’s ability to make free and uncoerced decisions in the mediation. Although the Court of Appeals says in its opinion that it “appeared that the mediator took proper care to ensure that the mediation was free from coercion,” the Court did not specify whether the mediator actually administered the protocol. If the mediator did not, that would be contrary to SCAO requirements and the Model Standards of Practice for Family and Divorce Mediation, Standard X.C. Presumably the protocol would have elicited the wife’s fear of the husband and the mediator could have taken steps to ensure her uncoerced decision, or to remove her grounds for contending coercion. In this case, the mediation was conducted via “shuttle diplomacy” where the parties were never in the same room together. This might not be sufficient to protect a wife whose husband wanted to harm her during or after the mediation. If Mr. Vittiglio had actually harmed his wife, this mediator could be open to liability for failure to follow standard procedures – if parties actually sued mediators.

The wife also contended that the mediator and her attorney repeatedly told her that the proposed settlement was better than what she could expect at a trial. Mediators who predict trial outcomes set the stage for results like this case, where a party later alleges coercion. Michigan’s current Standards of Conduct for Mediators state, “A mediator shall recognize that mediation is based upon the principle of self-determination by the parties. This principle requires that the mediation process rely upon the ability of the parties to reach a voluntary, uncoerced agreement.” (Paragraph 2) Many mediators thus refrain from predicting court outcomes. In this case, it’s not hard to imagine that the wife gave clues that she was feeling pressured and the mediator, rather than chiming in with her attorney, should have backed off and suggested an adjournment. Nevertheless, the Michigan Court of Appeals believes that “a certain amount of pressure to settle is fundamentally inherent in the mediation process,” and it did not distinguish whether that pressure comes from the attorney or from the mediator. So, in Michigan, a coerced mediation party might have a difficult time mounting a mediator malpractice case. Cf. Vitakis v. Valchine, 793 So. 2d 1094 (Fla. Dist. Ct. App. 2001), where the appellate court remanded the case to the trial court for consideration of the wife’s allegation that the mediator committed misconduct when he predicted court outcomes and pressured her to settle quickly; that court noted an exception to the general rule that coercion and duress by a third party is insufficient to invalidate an agreement between principals.

In just about every case I’ve seen where parties litigate the enforceability of a mediated agreement, the mediator contributed to the confusion; in other words, the mediator could have prevented the subsequent litigation. I don’t know the full story in this case, and it may well be that the mediator did the best possible under the circumstances, but questions remain. Suing mediators for malpractice is not the best way to encourage good mediation, but it’s also not good for the profession when bad mediators suffer no consequences.