This article was also published by the American Bar Association’s Section of Litigation, Alternative Dispute Resolution Committee.
In Pales v. Carrillo, 2013 IL App (1st) 123107-U (Dec. 12, 2013) (unpublished order), the Illinois Appellate Court addressed the rare issue of the viability of a claim against a mediator by a disappointed litigant. The plaintiff hired the defendant, a non-lawyer, who agreed to “negotiate and mediate” a divorce settlement. When the plaintiff was disappointed with the outcome, she sued, alleging in a pro se complaint that the defendant violated the standard of care set forth in the American Arbitration Association’s rules of conduct for mediators.
The court upheld a dismissal of the complaint for two primary reasons. First, the court ruled that there is no cause of action created by the AAA’s rules of conduct. The court noted that those rules might serve as “evidence of a breach of a duty in a negligence action,” but they cannot form the sole basis for a claim. Second, the court held that no mediation took place. A mediation, the court ruled, is a “process by which parties submit their dispute to a neutral third party (the mediator) who works with the parties to reach a settlement.” The plaintiff did not plead that a mediation occurred nor was there any indication that a mediation had taken place.