Blessed are the Peacemakers: Immunity from Civil Lawsuits for Therapists who act as Mediators

Abstract

The doctrine of judicial immunity holds that a judge cannot be sued for his or her judicial performance even if the judge acts intentionally or with malice. The doctrine has been expanded to include those who assist the judiciary such as mediators. In addition, mental health professionals who, acting pursuant to a court order, evaluate a criminal defendant's competency to stand trial or interview children in neglect proceedings have been accorded quasi-judicial immunity. The authors address the issue of whether immunity exists for therapists who mediate without court approval. Drawing on precedent establishing such protection for court-appointed therapists, the article makes the case for expanding the doctrine to embrace private practitioners. When therapists work with individuals to help them resolve their disputes, the authors contend, they are acting like judges and are deserving of similar protection. The policy factors and precedent militating in favor of extending immunity are explored, as are suggestions for making immunity explicit in the therapist-disputant agreement.