Does the mediator carry liability insurance? Most lawyers who mediate will be insured under their professional liability insurance programmes. This is a matter about which you should enquire. What sort of insurance is it? Does it afford protection for the mediator's negligent acts or omissions? While there is little experience in mediator negligence to date, one can envision cases of dishonesty or negligence where a mediator has an undeclared conflict of interest or conspires with one of the parties to a mediation, causing losses to the other. These days, all eventualities should be protected against. Failing to carry this kind of insurance will speak volumes about the mediator's business acumen, if nothing else. You should not have to bear the risk of mediator incompetence or dishonesty.

It is fair to say that in general most potential consumers and providers of mediation services have not addressed the issue of insurance in any way.

Despite the potential for claims, one of the leading Canadian texts or handbooks on family mediation, in its recent second edition, does not mention mediator liability, potential or otherwise although there is advice on the importance of written agreements etc. which clearly go a long way to avoiding claims or at least successful ones.

In the journal literature, special issues of Mediation Quarterly in 1984 reviewed "Ethics, Standards and Professional Challenges" and in 1985 "Legal and Family Perspectives in Divorce Mediation" were reviewed. In 1989, "Legal Issues Affecting the Practice of Mediation" were considered by the same publication but there has been little focus on mediator liability issues in either the academic or professional literature. It is almost as though caught up in the need to develop a theory of mediation which would support the increasing professionalization of mediators, the opposite side of the coin has been ignored.

Before embarking on a review of the problem, if there is one, it is helpful to try and define what mediation is and is not! It seems generally accepted that mediation is a process in which a neutral third person assist the parties in resolving their dispute without having any power to impose a result. The mediator functions by creating the conditions under which the parties will conclude a successful negotiation. There is no decision making power granted to the mediator only that of process managing.

The key to any definition or understanding of mediation and this is especially important from a liability perspective is that the parties make the decision to settle or agree and it is not imposed on them. The mediator as process manager or designer does not bear responsibility for the outcome provided that the process itself is not flawed. The mediator's duty consists of at least three elements to ensure a fair and open procedure. These elements have been characterized as the duty of impartiality, the duty to be thorough and the duty not to be coercive in the process.

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