Tuesday, September 22, 2009

Ten Ways to Get Sued

Remember Paul Simon’s, “Fifty Ways to Leave Your Lover?”

    Just slip out the back, Jack
    Make a new plan, Stan
    You don’t need to be coy, Roy,
    Just get yourself free…

What does this have to do with ADR Law?

According to an article by Michael Moffitt, Assistant Professor and Associate Director of the Appropriate Dispute Resolution Program, University of Oregon School of Law, there is another “song” mediators should keep in mind: “Ten Ways to Get Sued: A Guide for Mediators” (8 Harv. Negot. L. Rev. 81 (2003).

As Moffitt correctly points out, mediators have been practicing for decades – in perhaps millions of cases by now – without significant exposure to liability for their actions. Evidence of the perception that mediators do not face much risk of litigation is the low cost of mediator liability insurance compared with that, for instance, for lawyers and physicians.

This may be changing. Moffitt posits ten circumstances that could lead to litigation against mediators for malpractice:

    1. Fail to Disclose a Conflict of Interest
    2. Breach a Specific Contractual Promise Regarding Structure or Outcome
    3. Engage in the Practice of Law
    4. Engage in the Practice of Law Badly
    5. Breach Confidentiality Externally
    6. Breach Confidentiality Internally
    7. Maintain Confidentiality Inappropriately
    8. Advertise Falsely
    9. Inflict Emotional Distress on a Disputant
    10. Commit Fraud

Moffitt adds an honorable mention to this list: Mediate Poorly.

This blog is not the place to analyze each of these behaviors carefully. For that, I strongly suggest that you read the article; a link to it is here.

My point is that each of these enumerated items highlights behavior that all mediators – and parties -- should understand are either unethical or unprofessional and could be malpractice and lead to lawsuits. They should result in bad consequences imposed on the mediator.

If mediators practice as poorly as this list implies, there should be more malpractice cases.

Keywords: mediation, alternative dispute resolution, adr, mediator, ethics, unethical, ethical


  1. It is interesting to me how sharply divided the mediation community has been in its reaction to the suggestion that mediators might enjoy an excess of de facto immunity from liability for malpractice. I've heard the full range--from "about time the lousy among us get their comeuppance" to "heaven forbid." It one mediator conference at which I presented my research, I was actually hissed from the audience. (!) That generated retaliatory applause. (!!) It will be interesting to see how things unfold in the coming years.

    Michael Moffitt

  2. I do not understand why some mediators are afraid of liability. Do they not understand that they have a responsibility to the parties?

    I agree that it will be interesting to see how things play out. We will see.