Now, Who Wants to Be a Mediator?

Since 1990, in California, pursuant to the holding of Howard v. Drapkin (1990), 222 Cal. App. 3d, 843, 851-860), neutrals have been protected by "absolute quasi-judicial immunity" when engaged in mediation and similar dispute resolution activities. When I became involved in this activity in 1991, I remember being amazed at the enormity of the protection afforded. As a lawyer constantly being concerned with the potential exposure to malpractice liability, it seemed unbelievable that there was this safe harbor provided to alternative dispute resolution (ADR) practitioners, especially when the overwhelming majority of mediators at that time were lay people who volunteered their time. Lawyers shied away from this "too touchy feely" practice.

Now, 19 years later, with the field being overpopulated by lawyer-mediators, Assembly Bill 2475 (AB 2475) arrived on the scene in an attempt to drive a wedge into the very heart of the concept of "absolute quasi-judicial immunity." The bill introduced by Assembly member James T. Beall Jr., (24th Assembly District) sought to add Section 43.94 to the Civil Code, relating to immunity for ADR neutrals. According to the Legislative Counsel's Digest, the bill was intended to affect existing law that "grants immunity from civil suit to judges for acts performed in the exercise of their judicial functions" and extends that absolute protection to "persons other than judges if those persons act in a judicial or quasi-judicial capacity, including neutral [third] parties engaged in attempts to settle disputes."

Under the proposed bill as amended, third parties who engage in "mediation, conciliation, evaluation, or similar dispute resolution efforts under any statute or contract relating to an action or proceeding under the Family Code" would not be exonerated "from liability for any act performed within that capacity." The bill was designed to apply to "private persons appointed by the courts for their expertise, including mediators, guardians ad litem, therapists, receivers, and bankruptcy trustees," and to "persons involved in alternative methods of dispute resolution who function apart from the courts pursuant to private agreement, including mediators, conciliators, evaluators, and marriage and family therapists."

While primarily intended to deal with family court reform, it appeared to be a first step in the direction of further impacting the effectiveness and influence of ADR in California. In advocating passage of the bill, those seeking to accomplish their apparent goal of ending volunteer assistance to courts as quasi-judicial officers, one "watchdog group" supporting the bill referred to those individuals as a "cottage industry" that consists of "lawbreaking court appointees." The idea behind the bill appears to have been the exposure of ADR neutrals to lawsuits arising out of their services as alternative resolvers because as a group they are "lawbreaking court appointees."

Examining what we are facing here discloses that all the court (trial and appellate) mediation programs are at risk because they depend on thousands of volunteer mediators who donate their time as well those private mediators who assist the courts. No one could reasonably expect these individuals to continue to do so if they are exposed to lawsuits arising out of their services. Without quasi-judicial immunity these mediators will not be available to assist the courts in reducing their extensive and mounting backlogs of cases.

Apparently, the bill originated from the actions of a family law evaluator. Those familiar with how such evaluators function know that the court refers the matter to the evaluator who then reports back to the judge after concluding the evaluation. As such, this type of activity does not qualify as mediation because there can be no confidentiality concerning what transpired during the evaluation. In addition, mediators customarily do not "evaluate" in the same sense of the word. The true mediator maintains confidentiality and does not report to any outside individual or entity, with the exception of signifying that the case was or was not settled. The only "evaluating" performed by a mediator is in the area of the chances of one party prevailing at time of trial or on appeal as opposed to the other party, or in connection with the type of settlement that possibly could be effected that resolves the dispute.

Nevertheless, to say that the problem has gone away because the bill really was intended to deal with an isolated area (family law evaluation and report back to the court) ignores the public barometer regarding ADR. For too long those of us in the field have acted as if we were out of the line of sight concerning potential liability for the conduct of our activities. Somehow we felt that because we are making things better for those in conflict by providing a path to avoid lawyers and litigation, we are "special" and not subject to the animosity of those in dispute. It would seem that the genesis of AB 2475 indicates otherwise. And, whereas for years the thought of carrying ADR malpractice errors and omissions insurance coverage was not something considered necessary (if considered at all), AB 2475 should make it clear that time have changed.

Although the bill has been defeated in the Assembly, this type of anti-neutral attitude indicates that those in support of the continued viability and success of ADR in California must maintain constant vigilance not only regarding efforts such as AB 2475 but concerning improvement in the areas of integrity and responsibility to furthering the public interest. With the privilege of participating in the neutral profession comes the obligation of public interest accountability.

This translates to a wider purpose whereby neutrals raise to the same level the need for specific standards and licensure as a regulated profession in California.