Orlofsky ADR Services

Sanctions For Improper Mediation Conduct

Mediation SanctionsAlthough the facts need to be severe, courts have gone as far as dismissing lawsuits for mediation misconduct. In Hand v. Walnut Valley Sailing Club, 2012 WL 1111137 (10th Cir. 2012), the plaintiff sued a sailing club for revoking his membership. After a failed mediation session, he emailed all the club members, describing in derogatory terms what had taken place in the mediation. This was a clear violation of the confidentiality rules, and the court dismissed the action, noting that the violation was intentional, and that it potentially affected the testimony of club members who might be witnesses at trial.

In less extreme circumstances, monetary sanctions are the norm. For example, in Carnegie Associates, LTD. v. Miller, 2012 WL 1081179 (N.Y. App.Ct., 2012), the court reversed (over a dissent) a sanction of dismissal and imposed attorneys’ fees as a substitute sanction. The offending party had unilaterally cancelled one mediation session because his client was not going to appear, and then failed to file a required pre-mediation statement before the re-scheduled mediation.

The takeaway from these cases is that, just as in every other phase of litigation, one can consider seeking sanctions for misconduct in mediation.