Guardians Ad Litem Do Not Belong in Family Mediations [1]

The author begins by explaining that the presence of a guardian ad litem (GAL) in family mediations can be detrimental to the mediation process because the presence of a GAL destroys the promise of confidentiality is and can undermine the purpose of family mediation, which is to permit the parents to reach decisions concerning their children. [2]

In Part II of the article, the author discusses the role of the GAL and the purposes of family mediation. A GAL is a person appointed by a court in child custody disputes to assist the court in determining what custody decision will be in the best interests of the child. The GAL is expected to investigate the family, report to the court as to the best interests of the child, and often, make a custody recommendation, to which the GAL may be required to testify. [3] Although the GAL must make recommendations that are in the best interests of the child, the GAL's loyalty and responsibility is to the court, not the family. [4]

In the process of family mediation in custody disputes, the mediator helps the parents identify the issues to be discussed, assists them during discussion, and aids them in identifying and evaluating possible resolutions. [5] The primary purpose of family mediation is to empower the parents to act as parents – it helps the parents make decisions about their children, improves their ability to communicate, and reduces the emotional and economic costs of litigating custody disputes. [6] Mediation permits the parents to devise a post-divorce parenting plan that reflects the family's values. [7]

The Model Standards of Practice for Family and Divorce Mediation do not address what role the GAL plays in mediation, or the effect of the presence of the GAL on mediation confidentiality. [8] These are the issues that are explored in this article.

Part III of the article analyzes the benefits and harms of a GAL attending family mediation. As to the benefits, the GAL can learn a great deal of information helpful to determining the best interests of the child. Second, if there are safety concerns, the GAL can learn about them and report them to the court. Third, by attending mediation, the GAL serves as an "agent of reality" and assists the parents in reaching an agreement. Last, the GAL is in the position of helping the parents to understand what a court will or will not approve in a proposal. [9]

However, according to the author, GALs need not attend family mediations in order to achieve these benefits. Information about the family can be obtained without the GAL attending family mediation. [10] Safety concerns are likely to be raised through means other than mediation, since it can be investigated without the GAL attending mediation. [11] With regard to the GAL serving as an agent of reality, the mediator can do the same thing for the parties involved. [12]

In summary, although there are some benefits of the GAL attending the mediation, the benefits can all be achieved in other ways. Furthermore, the author claims, the presence of the GAL at family mediation also causes some real harm.

First, the GAL can obtain a distorted view of the family from the mediation sessions, as the parents may exaggerate or misstate facts. [13] Second, the GAL's purpose may conflict with that of the mediator, since the GAL's role is to assist the court in making a decision about the custody, while the mediator's role is to assist the parents in reaching resolution. [14] Third, the presence of the GAL may undermine or interfere with the work of the mediator in building trust with the parents and making decisions regarding how the mediation should take place. [15] Fourth, the presence of the GAL during mediation may negatively impact the parties' confidence in the GAL report later, since the parties may perceive the GAL as favoring one side or the other. [16] Fifth, the parties may strategically determine that they could benefit from the evaluation or report of the GAL, and request one before the mediation is completed. [17] Sixth, the presence of the GAL may destroy the confidentiality of the mediation, discussed in detail below.

In Part IV, the author discusses the mediation evidentiary privilege of the Uniform Mediation Act (UMA), and its effect on the GAL. Confidentiality is of paramount importance to mediation because it permits the parties to share their underlying interests and explore options without the fear that their statements will be used against them in a later proceeding. [18] The UMA protects confidentiality by creating a privilege that protects against use of statements made during mediation in later legal proceedings. [19] However, the GAL may report to the court something said during mediation, or use information obtained during mediation for further study. [20]

The UMA creates a privilege that allows mediation participants to prevent any person from disclosing mediation communications. This privilege is not automatic; a party to mediation must assert and enforce it. However, a question remains regarding whether a court will silence the very person it appointed as "its eyes and ears" and enforce the privilege. [21]

Parents in family mediation may argue that the privilege is intentionally broad and should be interpreted to preclude the GAL from making disclosures; that the privilege should be interpreted broadly since it serves important public purposes; and that none of the defined waivers or exceptions refer to the GAL. [22] Conversely, GALs can argue that the UMA does not address the presence of the GAL; and that existing exceptions should be extended to permit GALs to testify under limited circumstances. [23]

With regard to these competing arguments, the author believes that no exceptions should be created for GALs because they simply do not need to attend the mediation in the first place. [24]

Part V provides a discussion of the harms to family mediation if mediation confidentiality is compromised by the presence of the GAL. If parents know that the GAL can disclose mediation statements, they may refuse to participate and be subject to contempt proceedings or sanctions. [25] Other parents may later learn of disclosures and lose confidence in the mediation process. [26] Attorneys, knowing of the presence of the GAL at mediation, may counsel their clients not to attend the mediation, and be subject to sanctions themselves. [27] Furthermore, nothing in the UMA prevents the GAL from investigating issues learned about in otherwise confidential proceedings during mediation. [28] According to the author, everybody loses in any of these cases. Parents lose the chance to resolve their disputes in a way that reflects their family values, children lose the opportunity to have the disputes resolved with minimum disruption to the family, courts lose because judges will then have to make the decisions that they prefer the parents to make, and society loses because parents will need to expend more time, money, and energy to litigating the disputes. [29]

In Part VI, the author concludes the article by making several recommendations to courts, mediators, lawyers, and GALs. First, a state could adopt the policy not to appoint a GAL if the parents are engaging in mediation. Second, if GALs are appointed before mediation, they can be directed not to attend mediation and not to proceed with any investigation until the mediation has concluded. [30]

To implement either of these proposals, several additional steps are needed. First, those defining the role of the GAL will need to adopt standards that no GAL should be appointed if mediation is required or anticipated, or if the GAL has already been appointed, the GAL should be prohibited from attending the mediation or conducting investigations until after the mediation has concluded. [31] Also, mediators should not permit the GAL to attend the mediation, and attorneys whose clients are participating in mediation should ensure that the GAL does not attend the family mediation. [32] Finally, appointed GALs should not attend or participate in family mediation and understand the reasons why they should not, rather than fight to do so. [33]

[1] Suzanne J. Schmitz, Guardians Ad Litem Do Not Belong in Family Mediations, 8 Pepp. Disp. Resol. L.J. 221 (2008).

[2] Id. at 222.

[3] Id. at 222-223.

[4] Id. at 223.

[5] Id. at 225.

[6] Schmitz, supra note 1, at 226.

[7] Id.

[8] Id. at 227.

[9] See id. at 228.

[10] Id.

[11] Schmitz, supra note 1, at 229.

[12] See id.

[13] Id. at 230.

[14] Id. at 230-231.

[15] Id. at 232.

[16] Schmitz, supra note 1, at 232-233.

[17] See id. at 233.

[18] Id.

[19] Id. at 234.

[20] Id.at 235.

[21] Schmitz, supra note 1, at 236.

[22] See id. at 236-237.

[23] Id. at 237.

[24] Id. at 238.

[25] Id.

[26] Schmitz, supra note 1, at 238.

[27] Id.

[28] Id. at 239.

[29] Id.

[30] Id.at 240.

[31] Schmitz, supra note 1, at 240-241.

[32] Id.at 241.

[33] Id.