In Chodosh v. Trotter, No. 70952-53 (Cal.App. 2017), Plaintiffs alleged that a mediator affiliated with JAMS said during a mediation that Defendant’s offer was “a gift,” and if Plaintiff did not accept, the mediator would report to the judge presiding over the case that Plaintiff was the reason for the failure to settle. Plaintiffs further alleged a connection between the mediator and the presiding judge because shortly after the alleged “threat” the judge left the bench and joined JAMS. Despite the alleged “threat,” Plaintiffs did not accept the settlement, but based on those facts filed a multi-count complaint against the individual mediator and JAMS. This is, to my knowledge, one of the first serious attempts to craft a claim against a mediator.
The claim was dismissed for multiple reasons, including the fact that mediation communications are privileged, and therefore there could be no admissible evidence of the mediator’s alleged misconduct. Without going into detail about this and the many other reasons that led the dismissal, it is clear from the lengthy decision that most claims against mediators will fail. The court treated the mediation as quasi-judicial proceeding and had no interest in any of Plaintiffs’ various legal theories.
In my view, the important take-away from this decision is that parties should be extra diligent in working with prospective mediators to ferret out any possible conflicts of interest. If evidence of a perceived conflict emerges later on, it is likely that there will be no claim or other remedy for the party that feels aggrieved by the mediator’s conduct.