As a civil district judge, I always figured I had less of a chance of being shot by an angry litigant (in or outside of the courtroom), than did my colleagues hearing family law cases.  And I suspect that violence is more likely to occur in family mediations than in any other type of case.  But what is a mediator’s responsibility when violence or the threat of it occurs?

One option is to end the mediation and send everyone home, but when does blowing off a little steam, (venting as it is called ), become an actual threat to the participants?

One could call the police, but timing is everything, you don’t want to call too soon or too late.  One thing is for sure,  breaking up a fight is not an option.  If you have ever been in fisticuffs on the school playground as a kid, you learn quickly that breaking up a fight is more dangerous that being in one. In hockey the linesmen, who are charged with the duty to separate combatants, have learned over the years that while it is safe to break up pushing and shoving, once the gloves come off and the fists start flying, the best approach is to simply let the boys have their fun and pick up the pieces when it is over.

  She was mediating a family case and had declared an impasse in the early evening . She sent the husband and his counsel out first while the wife and her counsel remained in the office.  The mediator had the good sense to lock the glass door to her office upon the husband’s departure.  Sure enough, the husband returned to confront the wife and started banging on the door threatening to break it down. As luck would have it, the mediator was a concealed handgun licensee. Although she did not brandish her weapon, (which is a crime), she gave the husband just enough of a peak to convince him that this situation could not end well for him. He had the good sense to leave. I am not suggesting there is any place for guns in a mediation, but there could have been a lot of damage done, (property and personal), by the time the police arrived.  

            It seems that the chances of a violent outburst are greatest in the opening session. I find the opening dialogue is more the exception than the rule these days, but it is always a good idea to talk to the lawyers a few days ahead of the mediation to “take the temperature” of the parties and perhaps get some insight into what is driving them. It is not unusual for lawyers to agree that an opening session will just make the parties more antagonistic. If the tensions rise during the course of the mediation, it might even make sense for one side to leave the building and participate by phone.  In the final analysis though, the solution lies with the lawyers.  They know their clients far better than the mediator and their insight is critical in deciding upon a course of action.

But what happens if, despite your best efforts, someone gets hurt?  Though there is no statutory duty to protect the participants from each other, does a common law duty exist? And, is the mediator protected by quasi-judicial immunity even in a mediation that is not court ordered? Interested in mediation by Zoom?  Contact me and I’ll give you the details, dan@dandowney.com.