Mediators: Legal and Practical Profiles (From Privatizing the United States Justice System: Police, Adjudication, and Corrections Services From the Private Sector, P 238-251, 1992, Gary W Bowman, Simon Hakim, et al., eds. - See NCJ-137785)

• NCJ Number: 137798
• Author(s): D W Strawn
• Date Published: 1992
• Length: 14 pages
• Sale Source: McFarland & Company, Inc.
• Publication Type: Survey
• Language: English
• Country: United States of America

Annotation

The use of mediators is growing rapidly and will require attention to the development of precedents, standards, rules, and statutes to explain fully the legal, practical, and ethical standards that must guide their professional conduct and be used in assessing it.

Abstract

Mediators must examine their conduct in terms of both their professional responsibility as mediators and their responsibility within any other profession in which they are trained and offer service. Mediators are not advocates for specific outcomes or parties and should not make the achievement of a settlement their only goal. Instead, mediators are neutral, impartial facilitators who must listen, be creative, silently accept rejection, be principled, and manage conflict effectively. Mediators' legal roles may be defined by laws and rules of civil procedure if the mediation is court-ordered. In some cases they may also be involved in a process in which mediation precedes arbitration. Mediators should also be aware of potential areas of liability, including intentional tort, breach of contract, expressed contract, implied contract, fiduciary responsibility, quasi contract, and negligence. Specific sources of liability include giving legal advice, the unauthorized practice of law, failure to keep confidences, misrepresentations to disputants, drafting documents for disputants, and the violation of applicable court rules. Nonlawyers who perform court-ordered mediation are subject to the same standards as lawyers.