A mediator went way overboard in preparing a report prior to a custody/visitation modification in San Diego Superior Court. She made many and varied collateral contacts, advocated the invasion of my privacy by recommending to the court to order my ex-wife has the ability to inspect my residence at will and interviewed my children in a directed manner to cause them emotional distress in any visitation. This was in the face of a complete lack of any evidence of lack of fitness on my part. I was trying to get more time and had SDT'd the mediator in anticipation of a bad report due to her hostility in the session. She did the exact same thing at a session 4 years ago! I need to address her actions. Can I sue her, individually or should I include the FCS department as well?
It is my feeling she exceeded the scope of her authority and therefore forfeits any immunity that there may have been in being court-connected. She even tried to ask me to produce documents, after contacting a police agency to determine the nature of an investigation (filed for purposes of discrediting me by my ex, the opposing party) to illegally assist in a criminal investigation against me which was eventually dismissed. Anyway, this mediator is out of control and I need to adress the actions and their direct result. Who do I sue and what causes of action can I allege?
Family Law Attorney
I think this issue is best addressed by a civil litigator who specializes in governmental immunity cases. You should expand your attorney search criteria.
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Child Custody Lawyer
Normally governmental employees, which a mediator is, has at minimum qualified immunity, and sometimes absolute immunity.
However, qualified immunity can only be pierced if you can prove that the mediator intentionally, with knowledge of, or constructive knowledge of, violated your constitutional protections. From your post it seems as though she made a recommendation to the court and advocated for certain provisions, but it does not appear, at least from your post, she violated a consitutional protection. Look at 42 U.S.C Section 1983 on how to sue individual governmental employees.
That being said, that does not render you case untenable. If you feel the FCS department was negligent in some way, you may be able to file a suit under the FTCA. However, based upon your post I am doubtful you would be successful.
I understand your frustration, and I hope this assisted you in some way.
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Divorce / Separation Lawyer
Take a look at Civil Code section 47. The statute will almost surely be used by the mediator as a defense to a defamation cause of action. You further likely waived your expectation of privacy by agreeing to the mediator.
Nonetheless, there are ways around the statute as well as ways around qualified government immunity if you can establish malice. It is a very high legal standard.
In your family case, you can always challenge the mediator's findings. Again, doing so is difficult but not impossible.
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