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Insurance for mediators

28 June 2016
Arguments Yard Whitby_David Hastings

Stuck in the muddle

It’s not easy sorting out other people’s problems. Genuinely, is it actually possible to please everyone, all the time?

Talks get heated, accusations get thrown around (and, possibly, other things too). Worse, if one party thinks they’ve unfairly been given the rough end of the deal, you could find yourself having to sort out some problems of your own.

Mediation takes skill. You have to satisfy at least two clients and that can be tricky. Keeping a cool head helps, as does finding a settlement that everyone agrees on.

But what happens when a compromise can’t be reached? Leaving yourself exposed to allegations that negotiations failed because of something you did (or didn’t do) isn’t a good idea.

Protecting yourself from financial and reputational damage definitely is.

Trouble and strife

Truthfully, real-life cases of mediators being successfully sued by their clients for basic incompetence or breach of duty are extremely rare. Almost non-existent, in fact. But that’s not to say it can’t happen.

It’s more common for mediators to be accused of doing something wrong. Examples of this include failing to disclose a conflict of interest or breaching confidentiality.

But even if you’re sure a client’s loss isn’t down to you, it doesn’t stop the questions being asked. And, if that happens, you’ll need to defend yourself or risk a damaged reputation.

That’s why professional bodies such as the College of Mediators recommends professional indemnity insurance. If a client accuses you of negligence, and the claim goes to court, the insurer steps in to cover your defence costs and any damages if you’re liable.

Actions speak louder than words

It’s not all about pleasing your clients. Exercise some basic self-preservation during your sessions and you’ll limit your chances of a claim. As always, it’s a good idea to start with the basics:

Let’s talk best-case scenarios. Find out early on what it is your clients hope to achieve from mediation. Help them manage their expectations by providing reasonable estimates of potential losses or damages.

Avoid the law. Intentionally or not, your work can touch on legal areas. As long as you remember there’s a line drawn between providing legal information and providing legal advice, and you stay on the right side of that line, you’ll be OK.

Have your clients sign a contract. Set out your procedural methods and any ground rules to do with confidentiality, payment, communication, etc. It won’t necessarily stop claims but at least you’ll protect your interests and everyone will know where they stand.

Check your emotions at the door. Anger and stress might cloud your clients’ judgement but it shouldn’t affect yours. No matter how heated discussions get, choose your words carefully and keep your language neutral, and be wary of the ‘tough love’ approach.

Confidentiality is key. Check that the room you conduct the sessions in is soundproof and secure. Keep any important documents and/or sensitive information safely locked away. Remember that confidentiality breaches can be internal or external – if in doubt, check with your client before mentioning anything to a third party that could compromise their position.

Take rigorous notes … then destroy them. This is common practice among mediators and is fine so long as you let your clients know about it beforehand. However, you might want to hold on to your notes a little longer after a case is finished in case you ever have to revisit it.

In essence, don’t forget to look after yourself as you look after your clients. You need as much protection as they do.

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