INKOVEMA Podcast „Well through time“

#57 – Liability in mediation

What are mediators (as opposed to lawyers) liable for – and how can they deal with this in practice?

In conversation with Prof Dr Thomas Riehm

Well through time. The podcast about mediation, conflict coaching and organisational consulting.

Prof Dr Thomas Riehm.Professor of German and European Private Law, Civil Procedure Law and Legal Theory, University of Passau.

Contents

Liability in civil law means that you are liable for damage that you have caused...In mediation, liability for mediative activities is very unlikely because between mediative activities and the occurrence of damage there is usually an independent activity on the part of the conflict party that causes the damage.

  • Liability = breach of duty + causal damage
  • Case studies for causalities between breach of duty and occurrence of damage.
  • Proof of causality between a breach of duty and damage.
  • Federal Court of Justice (2017) on the liability of mediatorsand lawyersinside: Mediation activities are not subject to the liability of lawyers.
  • § Section 4 RDG – Legal advice is only subject to those professionals who are authorised by the state to provide legal advice –.
  • Contractual limitations of liability for mediators
  • What should you do if you have caused damage through a breach of duty?

Literature:

  • Riehm, Thomas: The liability of mediators - sword of Damocles over the flipchart?, in: ZKM 2019, 120-128.
  • BGH v. 21.9.2017 - IX ZR 34/17, MDR 2017, 1331 = NJW 2017, 3442 = ZKM 2018, 29