I’m in the process of finishing up an article inspired by a horrific local mediator who, as a result of his “mediation” actions, now resides in the state penitentiary. I’ll be posting more about the article and the mediator’s actions after the piece is finished and submitted for publication. That said, presumably there are numerous other mediator horror stories that are also not well-known , some of which already are documented in some way and others of which need to be documented. As a result, I’m trying to create a collection of such stories to share with a broader audience. So, here’s my request. If you know a mediator horror story and it can be documented in some way, I’d like to add it to my collection. You can post the relevant information in the comments or contact me at art.hinshaw@asu.edu.
Thanks for your help with this.
The case you describe in your article is unarguably a “horror story.” And I can’t wait to read the final version of your article.
I expect one would have a greater challenge with the vast bulk of cases discerning horror story from gross negligence from simple negligence from routine practice variation.
One case that I know to be pending right now is a claim against JAMS and a JAMS mediator in California. The mediator, a former judge, and JAMS itself are accused of breach of contract, fraudulent concealment, negligence, IIED, NEID, intentional misrepresentation, negligent misrepresentation, and unfair business practices. The crux of the complaint involves allegations of bias, of improper mediator threats of ex parte communication with the presiding judge, mediator communicating the terms of a settlement inaccurately, coercion, judicial bias resulting from an offer for the judge to join JAMS following retirement, etc. The plaintiff characterized it as a “mediation mugging,” in which JAMS and its mediator “knew and expected and planned that these senior citizens would fall prey to Justice TROTTER’S abuse of his position and that he would be able to make credible and intimidating threats to terrorize and coerce these Plaintiffs with the purpose to procure a settlement unfair to Plaintiffs but highly favorable for the corporate, insurance and big law firm customers.”
The case is Chodosh v. Trotter and JAMS, filed in Orange County Superior Court May 12, 2014. (I have a copy of the complaint but it’s too large to attach. Send me an email if you want me to forward it to you.) I just learned that the court has released a tentative ruling granting the defendants’ Anti-SLAAP motion. (http://www.occourts.org/tentativerulings/mschulterulings.htm) Confidentiality. Quasi-judicial immunity. Etc. The standard litany of defenses that effectively prevent virtually all actions for civil recovery against mediators for alleged misconduct.
Is the Chodosh case a horror story, even if all of the plaintiff’s allegations are true? Nothing that rises to the level of conduct in the case Art explores in detail.
But I suspect this set of facts is more typical of the (and this is important I think to emphasize) STILL ATYPICAL mediator misconduct one might see more commonly if one were omniscient. By that I mean that I continue to believe in the importance, the integrity, and the utility of mediation, and I believe that most mediation practitioners, most of the time, attend to their offices with skill and good faith. The prominence of mediation makes it important to explore deeply questions of quality assurance. Mediation is a human institution and no less vulnerable to human foibles than any other practice or profession – even if it continues to be one in which its practitioners are not easily exposed to consequences for conduct demonstrating those human flaws.