Mediators as Fiduciaries

Rebekah Ryan Clark has published her comment The Writing on the Wall: The Potential Liability of Mediators as Fiduciaries in 2006 BYU L. Rev. 1033 (2006).

Here is her conclusion:
   

Although most scholars and courts have not yet recognized fiduciary liability for mediators, recent trends indicate that at least some legal mediation relationships will likely be future additions to the expanding list of informal fiduciaries. While courts themselves will likely continue to apply the traditional doctrinal approach to fiduciary law when analyzing duties of mediators, the Scharffs-Welch framework helps mediators to more accurately predict when and to what extent such fiduciary duties will apply to particular factual circumstances of each mediation relationship. The framework is thus a useful tool for clarifying the complex and varied standards used in fiduciary law and for illuminating current case law that thus far has avoided extending fiduciary liability to mediators, demonstrating that the door is still open for courts to find some mediators to be fiduciaries in the future.
   

Using this framework and analyzing the future of the mediation profession in the context of recent trends also helps confront and overcome several of the concerns which have been voiced by opponents throughout the two decades of debate over extending fiduciary duties to mediators. This analysis demonstrates that in the future, mediators may likely owe some level of fiduciary obligations to the parties in certain mediation proceedings–primarily fairness, impartiality, confidentiality, disclosure of conflicts of interest, good faith, and no false misrepresentation. This knowledge allows mediators to prepare for the trends of the near future, when mediation will likely take an established place among the professions, with the accompanying benefits and liabilities of such a position.