The role of the mediator himself, who is not decisive in the conflict but rather seeks creative ways to resolve it, requires providing protection and room for maneuver and action.
Therefore, the examination of the mediator's actions wisely in retrospect requires extra caution and accordingly the full and clear existence of all the bases of the tort at a level that exceeds the "regular" probability test, taking into account the protection that the legislature granted to the mediation proceedings in relation to various civil areas.
The comparison with the court's rulings in arbitration matters also strengthens the conclusion that there is room to examine the mediator's conduct with extreme caution, and in fact, only gross negligence bordering on a malicious act should lead to a mediator being held liable for damages. See and compare Civil Appeal Authority 6830/00 Aryeh Baranovitz v. Moshe Teumim, 57(5) 691 (2003)
As stated in the Baranovich case, legal policy considerations justify the deployment of a defense mechanism over judicial mechanisms and judicial bars. The general interest is the existence of mechanisms that make the need for judicial decisions in each and every dispute unnecessary. Therefore, and in accordance with the ruling in this matter, there is no room for the dismissal of claims in limine in cases such as our case, where a separation must be made between the cancellation of the transfer ofa hearing venue that gave effect to the arrangement and the claim relating to the arrangement itself, while allowing the injured party to have his day in court. However, I am of the opinion that the examination of the actions of the mediator, like that of the arbitrator, should focus on the existence of negligence in the course of a malicious action, and it is through these lenses that the actions of the mediator must be examined.
In our case, did the mediator act negligently?
- The imposition of liability for the plaintiffs' damages on the defendant depends on proof of the formation of the elements of the tort of negligence: the existence of a duty of care, negligence and damage caused by its breach; And see Civil Appeal 6296/00 Kibbutz Malkiya v. State of Israel, PD 59(1), 16.
The tort of negligence includes two layers that the court must examine when determining the existence of liability for damage by a tortfeasor - a conceptual liability duty and a concrete liability obligation.