ABSTRACT
Liability in contract arises if a mediator breaches the contract between him or herself and one or both of the parties. This can be in a written or verbal contract. There are two forms of breach: failure to perform and anticipatory breach. Liability in tort arises if a mediator improperly influences a party in any way, defames a party, breaches confidentiality or, most commonly, and is liable in negligence. If a lawyer acting as a mediator assists the parties to resolve the matters in issue they should acknowledge, in writing, that they understand the differences. The lawyer-mediator must at the outset inform the parties to the mediation that although communications pertaining to, and arising out of, the mediation process may be covered by some other common law privilege, they will not be covered by the solicitor-client privilege. In the United States, the legislation in Pennsylvania protects the confidentiality of statements and documents produced or created for mediation.
