As the review indicates, most of the mediator's duties are in the field of mediation ethics and the manner in which he conducts himself is subject to his general obligation, which is also set forth in the Mediation Regulations, to act fairly and in good faith in the framework of the proceeding.
- Therefore, conceptually, I Finds that while the mediator is acting within the framework of his role, an action that is not in accordance with the expected norms of conduct may establish a claim of negligence against him.
Similar to the professional negligence of any other functionary, the mediator, if he does not perform his duties in the manner expected of him, may be liable for professional negligence, provided that the conditions in the law for determining the existence of such negligence are met.
The person claiming negligence must prove that there is a conceptual and concrete duty of care towards the injured party, that this duty was breached, and that there is a causal connection between the breach and the damage caused. When examining the responsibility of the mediator, it should be noted, as stated above, that the mediator is not a party to the mediation process and the mediation arrangement, which has an independent status.
Accordingly, to the extent that the mediator points to action in accordance with accepted norms in the world of mediation, with transparency and impeccable in the framework of the mediation process, there will be no cause of action against him for damages .
- An examination of the defendant's summaries shows that he too does not deny the conceptual possibility that a mediator will be liable for damages in the appropriate case - and it is reasonable to assume that it is not possible to accept a situation in which there is absolute immunity for the mediator in the framework of his actions.
Similarly, with regard to the mediator's ethical duties, the court ruled that "therefore it can be concluded, and rightly so, that the mediator's ethical duties are not absolute and depend on moral, moral and social balances, just as the freedom of choice of the parties to the mediation with regard to the content of their agreements is not absolute and is also subject to the boundaries of the law, public policy, and agreed social norms." (Agreement file (Petah Tikva Family) 40184-02-17 A. B v. Y. Monday (18.10.2020).
- The conclusion that emerges from the aforesaid is that in the appropriate cases it can be determined that the mediator acted contrary to the standard of conduct expected of him and is liable for damages in light of the results of the mediation process he conducted.
- However, this principled determination must be qualified and this liability must be examined With Increased Caution.
The legal doctrine seeks to encourage mediation proceedings and setting a threshold of negligence in relation to the actions of mediators may serve as a significant cooling factor that will prevent mediators from exhausting the full potential inherent in the proceeding, out of concern that various actions they take may lead to their personal liability as a result of these actions.