The Crisis in Insurance Coverage for Mediators, Part 2: Coverage for Mediators Entering the Field from the Mental Health Professions – You May as Well be “Going Bare” Because “There’s no There, There”

Abstract

A couple looking for a cheap divorce, a confused judge, a poorly informed and over-zealous prosecutor, and a disciplinary committee that failed to follow existing legal precedent ended the mediation career of Dr. Resa Fremed in Connecticut. Dr. Fremed's story inspired me to write a series of articles about insurance coverage available for mediators. This article is the second in the series.

The article begins with a brief discussion of the UPL proceeding filed against Dr. Fremed and her insurance coverage dispute. It next describes potential claims against mediators, the risk of a claim against mediators, and basic insurance concepts, terms, and clauses. It next summarizes the detailed analysis of three professional malpractice (or E&O) policies as examples of the types of coverage available to mediators coming to the field with mental health backgrounds (the profession-of-origin policies). This section of the article includes a summary of the policy provisions governing scope of coverage, listed exclusions, special conditions, “other insurance” clauses, the duty to defend, settlement options, choice of defense counsel, deductibles, and available endorsements.

The article concludes that nearly all mediators fail to realize that their current profession-of-origin malpractice policies will not provide the coverage or defense mediators likely need, expect, and are willing to buy. The coverage gaps exist especially if the mediator faces an ethics grievance, a UPL disciplinary proceeding, or a subpoena seeking the disclosure of confidential information. Only one policy offered coverage for mediation, but then only if the mediator met three conditions that are buried in the language of an exception to an exclusion.

Appendices A to C of this article analyze in detail three professional malpractice policies as exemplars of the typical language governing coverage for mediators entering the field from mental healthcare professions. The appendices analyze policies available to a therapist-mediator, a psychologist-mediator, and a social worker-mediator.