Coming to New York? An Unconscionable Mediation Agreement, 78 NYSBA Journal 40 (2006)

Abstract: Mediation is for the most part an unregulated profession. And yet a mediator can have a very significant impact on the outcome of a dispute. Because of the absence of regulation, the terms and conditions for mediation are normally set forth in the agreement that binds the parties and give rise to the dispute. Whatever the terms may be, one thing is always the case: determinations by the mediator are always non-binding. This feature should place mediation agreements beyond the reach of the doctrine of contractual unconscionability. And yet there are cases saying otherwise. In this article Marrow discusses the basis for a determination that an agreement to mediate is unconscionable and offers the draftsman suggestions on how to avoid the pitfalls in the arbitration clause itself. Therefore, arbitrators trained in the civil law tradition may be called upon to provide rulings involving a theory of law that is totally unfamiliar to them. The article is constructed with these readers in mind.