IAAL--mediation comments-

[karma1]

What is the name of your state? CA
I have personally seen in at least 4 cases, as of late, that a judge did NOT go by mediator's recommendations and up until this time, thought that was pretty much the standard.
Now, we all know that very rarely do parents agree in mediation and court usually follows, but, the rules are the rules and parents have to attend.....BUT, what does this say for the whole premise of mediation, and the mediator themselves? Have you been involved in cases when mediator's reports where not adopted as the court order?
This just has my curiousity peeked and I have received comments that now, if this is a trend ( realize 4 cases is not actually a trend, but it sure was something I had not heard of before), it actually makes a judge more powerful and the "best interest of the child" less important....
Comments?

 

[karma1]

just a bump

nm

 

[I AM ALWAYS LIABLE]

My response:

From my own experience, a mediator's recommendation is probably rejected about 30% to 40% of the time by the court, in favor of Due Process limitations caused thereby.

Recommendations forwarded to the court pursuant to duly-adopted written local rules are deemed "significant," given the mediator's special training, education and experience. However, those recommendations are simply evidence to be weighed with all other evidence in the case; the mediator's recommendations are not binding because the court (not the mediator) is charged with deciding the custody/visitation issues. [Marriage of Rosson, supra, 178 Cal.App.3d at 1104, 224 Cal.Rptr. at 257; Marriage of Slayton, supra, 86 Cal.App.4th at 659, 103 Cal.Rptr.2d at 549]

Even so, because the court is likely to know and trust the mediator, the onus is on counsel to pursue vigorous cross-examination. Absent compelling evidence disputing the mediator's findings and recommendations, they may well be "outcome determinative." To the extent the court is empowered to consider the mediator's recommendations, the mediator may also be required to testify at a subsequent custody/visitation hearing. [See Marriage of Slayton, supra, 86 Cal.App.4th at 659-660, 103 Cal.Rptr.2d at 550]

In connection with mandatory mediation, as a matter of due process, the court may not even consider the mediator's recommendations (notwithstanding local court rules) unless the parties are afforded an opportunity to examine the mediator - - both on direct and cross-examination - - on matters covered by the recommendations. [Marriage of Rosson, supra, 178 Cal.App.3d at 1105, 224 Cal.Rptr. at 258; McLaughlin v. Super.Ct. (McLaughlin) (1983) 140 Cal.App.3d 473, 480-481, 189 Cal.Rptr. 479, 485; see Marriage of Gayden (1991) 229 Cal.App.3d 1510, 1521, 280 Cal.Rptr. 862, 888, fn. 8 - - ex parte manner in which trial court sought and received family counselor's oral recommendation denied parties "essential elements of due process and was clearly improper"]

The right of full cross-examination is particularly important where the mediator excluded counsel from the mediation sessions. Cross-examination at the custody hearing affords the parties the opportunity to explore any perceived deficiencies in the mediator's understanding of the facts or his or her conclusions. [Marriage of Slayton, supra, 86 Cal.App.4th at 659, 103 Cal.Rptr.2d at 550]

IAAL

 

[karma1]

thank you

I never knew you could cross-examine a mediator! and I dont believe I've ever actually seen one in court-wow!
thanks again~