At 09:54 PM 3/1/2000 -0500, you wrote:
>Hello,
>    My understanding of mediation is that it's a process whereby a middleman
>(the mediator) facilitates discussion and prods the people in dispute to
>reach a joint solution.  A mediator does not take a position or make a
>decision but simply acts as a conduit to allow the parties to reach a common
>ground and a common solution they the parties are happy with.  If the parties
>refuse to work towards a common ground, the mediator simply declares the
>process over and walks away.
>    An arbitrator, on the other hand, comes to a decision choosing a
>position.  That decision may be binding or non-binding but nevertheless it's
>a stated position.
>    If I am correct, and please tell me if I'm not, the arbitrator may be
>liable for abuse of discretion or some such action but the mediator should
>not bear responsibility since they don't force or mandate any action.
>
>Mike Katz
>Delaware State University


No.  The arbitrator has judicial-type immunity from personal liability for
her decisions.  An arbitrator's decision cannot be appealed on the basis of
her factual findings, legal conclusions, or any other aspect of her
decision.  If you look at 9 U.S.C. secs. 9 & 10 (almost all state
arbitration statutes for localized, purely intrastate matters say the same
thing), you will find that, when an arbitrator's decision is either
appealed by the loser or filed by the winner in the court clerk's office
for "confirmation," (turning it into a court judgment), the grounds on
which the court can review are few:  The court will check to make sure
there was a written agreement to arbitrate, and beyond that will
essentially look only at process-related matters--such as, was there a
significant, undisclosed conflict of interest by the arbitrator (e.g., a
previous significant business relationship between the arbitrator and one
of the parties), or where the arbitrator clearly exceeded her authority in
deciding an issue (this happens rarely, but when it does happen, it usually
arises out an arbitration agreement between the parties that was very
narrowly tailored so as to limit arbitrable disputes to relatively specific
issues.
  A mediator doesn't have judicial-type immunity, for the obvious reason
that she doesn't make a decision on the merits--here decisions relate to
how best to get the parties moving in the direction of settlement.
However, some states have, by statute, granted immunity for personal
liability for certified mediators.  About the only possible basis for a
mediator's personal liability that I can envision is breach of the contract
under which the mediator assumed the obligation.  If the mediator doesn't
show up at the proper times, or otherwise doesn't make much of an effort to
do the job which she contracted to do.   And, of course, there is nothing
to appeal to a court based on what a mediator has done.

John Allison