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    Mediator immunity: time for evaluation in England and Wales?

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    Name:
    Penny Brooker Legal Studies ...
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    Authors
    Brooker, Penny
    Issue Date
    2016-06-19
    
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    Abstract
    In England and Wales, the issue of mediator immunity has not been considered by the courts or via legislation. Mediator immunity is constructed by analogy to that given to judges, but the role of the judiciary is different to that of mediators, who do not determine cases and, it is argued, do not require protection from litigation because the parties are responsible for the final settlement outcome. In Australia and the USA, mediators are usually provided with immunity in mandatory, ‘court-annexed’ programmes, although this varies from an absolute to a qualified level that is constrained by bad faith or dishonesty. In the English jurisdiction, mediation is court-connected and parties are dissuaded from accessing the courts through the risk of costs penalties or automatic referral schemes. Therefore, the time is opportune for a review of many issues involved in mediation development, including immunity. This paper considers the reasoning for extending immunity to mediators, before concluding that the subject should not be determined through legal action until after a comprehensive review of mediation developments and after a consideration of mediator standards and regulation of practice.
    Citation
    Brooker, P. (2016) 'Mediator immunity: time for evaluation in England and Wales?', Legal Studies, 36(3), pp. 464–490. doi: 10.1111/lest.12120.
    Publisher
    Cambridge University Press
    Journal
    Legal Studies
    URI
    http://hdl.handle.net/2436/620976
    DOI
    10.1111/lest.12120
    Additional Links
    http://doi.wiley.com/10.1111/lest.12120
    Type
    Journal article
    Language
    en
    ISSN
    0261-3875
    ae974a485f413a2113503eed53cd6c53
    10.1111/lest.12120
    Scopus Count
    Collections
    Faculty of Social Sciences

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