Immunity Incorporation by Reference

By Frank Laney

Recently the Commission has been asked to look at certain aspects of waivers and immunity for mediators. In preliminary discussions with Tara, it occurred to us (Tara) that there is a hole in the best practice advice that the Commission as well as the trainers may have been giving over the years.

Commonly, mediators have been advised that if you are mediating a case that is not referred or ordered to mediation by a court, then take advantage of the many features of the court program by incorporating the rules into your agreement to mediate.  While there are lots of valuable attributes to be found in the MSC and FFS Rules, one thing that is only in the statute is immunity for the mediator.

Both MSC and FFS statutes confer judicial immunity upon mediators. 7A-38.1 (j) (MSC) and 7A-38.4A (h) (FFS) both provide that:

“Mediator and other neutrals acting pursuant to this section shall have judicial immunity in the same manner and to the same extent as a judge of the General Court of Justice, except that mediators and other neutrals may be disciplined in accordance with enforcement procedures adopted by the Supreme Court pursuant to G.S. 7A-38.2.”

But the MSC nor FFS Rules do not reference that judicial immunity nor provide any liability protections.  Thus incorporating only the Rules will not provide liability protection.

An example would be if a mediator’s partners want the mediator to put a waiver of liability into his retainer agreement, a waiver which would cover not only the mediator but also his firm and its partners.  Judicial immunity would provide stronger and broader protection than a waiver as immunity not only protects the mediator, but under rules of secondary liability, those secondarily liable (law firm partners) are absolutely protected if the primary (the mediator) is not or cannot be found liable. While in court-ordered cases, which are covered by the statute and thus provide judicial immunity, waiver by contract seems like overkill at best. (You have judicial immunity; what more do you want?) But in privately retained cases or pre-litigation mediation, incorporating the Rules will leave out this important protection.

Therefore, best practice seems to indicate that to clarify several issues and provide judicial immunity for the mediator, agreements to mediate should incorporate the statute as well as the rules. Think about adding it to your retainer agreement and agreement to mediate.