3.3.3 The Significance of Suing Mediators

This article presents the challenges of ensuring the quality of mediation services. Unlike most professions that have formal credentialing, regulations, and oversight, mediation lacks structured systems for quality control. While private legal actions could serve as a mechanism for regulating mediators’ conduct, actual lawsuits against mediators are rare and rarely result in legal judgments. This article explores the challenges plaintiffs face when attempting to sue mediators, examining the legal theories that currently apply to mediators’ practices, and detailing the legal hurdles that prevent successful lawsuits, leaving mediator misconduct largely undeterred. In this environment, public knowledge of substandard practices remains limited, and calls for regulatory changes are unlikely. The article also suggests developing a unique liability framework for mediators, considering the parties’ direct experience with mediation and their ability to terminate services. Additionally, it proposes a differentiated approach to mediator liability, distinguishing between breaches of customary duties and those outside established norms. The article argues that such a framework could better address the challenges of mediator misconduct while accounting for the distinct nature of mediation.