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Although the history of judicial immunity is somewhat troublesome and disconcerting, it is a model of clarity and consistency when compared to the recent developments in mediator immunity. In order for the courts to justify mediator immunity in Wagshal v. Foster and Howard v. Drapkin, it was necessary to either misconstrue the fundamental differences between judges and mediators or ignore the standard tests applied to judicial immunity and jump to a needs-based argument that is clearly self-interested and poorly informed. With regards to statutes and rules, those that promulgate immunity have ignored the substantial problems that will eventually arise from mediator immunity, such as a risk of regulation, reluctance on the part of disputants to mediate, and the deleterious impact on the development of the practice by way of the common law. Although arguments have been advanced that immunity is necessary to insure a supply of mediators for court-annexed programs, there appears to be no empirical support for this position. Nor is there any anecdotal support either; court-annexed programs are flourishing where no immunity exists. In the final measure, there is nothing to support immunity for mediators other then the naked self-interest of the courts and mediators.

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Oregon Law Review





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