Per Jeff's suggestion, I am re-sending my email as a "discussion" item so we can engage in a group e-conversation. I am interested in hearing what others think about a few issues I've been pondering....
Sec. 6(5) of the FFA provides that housing counselors are not liable for civil damages for acts or omissions unless the acts or omissions constitute gross negligence or willful or wanton misconduct.
As you all know, the Act does not provide mediators with similar protection (see Sec.7).
I am worried that a disgruntled borrower or lender may sue the mediator if the mediator's certification has indicated a failure to participate in good faith (because there are legal, adverse consequences to the party found to have breached the duty of good faith).
So my questions are --
(1) Should we ask the WSBA via the ADR section to look into seeking an amendment to FFA that provides mediators with protection similar to that afforded housing counselors?
(2) Does the lack of legal protection affect our duty to be neutral? Will we think twice before certifying either party's breach of duty of good faith (because we face being named in a lawsuit or getting caught up in discovery if the affected party is looking for a scapegoat.)
I confess I have not looked at other states' programs to see if mediators are treated similarly to WA law and, if so, whether parties found not to be in good faith have sued mediators for negligence or other reasons. Anyone know?
[I'll add here that I have read the blog about the NV supreme court decisions (see Discussion Forum -- Serena Lee, July 26). This reinforces my concern that parties adversely affected by mediator certifications may look for ways to set it aside including filing claims of negligence, misconduct, etc. against the mediator.]
I am interested in hearing your thoughts.
Kind regards, Marilyn
So sorry this has happened. This should be reported to the various entities that working on amending the statute - including the WSBA ADR section. You should be getting all possible support from the ADR section and others on this. We knew this was coming and sorry you are the first one. All the best.
Thank you for the reply Selden.
My apologies, it seems I misunderstood the furious threat of a bar complaint and law suit naming me. I appreciate the Beneficiary attorney phone call today to clarify their position. I also appreciate their apology regarding their anger management. Thank you.