Is there a recourse of action for an mediator not being impartial? I wasted my time, money and energy.

Asked over 1 year ago - Los Angeles, CA

The mother is not allowing me to have visitation with my daughter. I filed contempt papers but decided to go to mediation before serving her to see if we could work out a custody arrangement. Upon entry the mediator asked the mother "hey don't I know you?" The mother replied "yes you helped me file the restraining order papers a few weeks ago." Now to clarify, the restraining order was never granted, I was never served. She attempted to file because I refused to take off my shoes in her house and alleges I said "bad words in another language" she doesn't even speak, while visiting my daughter. No violence no threats. The mediator refused to listen to anything I said . I presented outlined custody plan and she ignored it. I wanted 50% she tried forcing 8% on me. Men always loose =(.

Attorney answers (3)

  1. Naomi T Stal

    Contributor Level 11

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    Answered . Without more facts, its difficult to answer this questions conclusively. I will try to outline some possibilities for you.

    If this was court ordered mediation, there is a rule of court 5.210(h) that outlines the ethics required by court related child custody mediators. Your scenario is outlined in #10. On this basis you can call a supervisor and explain that there was a clear bias and the mediator needed to excuse themselves the moment they admitted and recognized that a) mediator knew Mother, and more importantly, b) mediator has helped mother in a matter that was against you.

    Mediator therefore violated the mediation ethics under the court rules.

    Let me squeeze in a wrinkle in the system here...

    On May 1 the ADR office underwent significant changes and the mediation department is no longer run by the courts (if I understand the budget cuts correctly). Being that there has been a shift in who runs the programs now, you may possibly get lost in this shuffle and your complaints may go unheard. Be prepared to be patient to deal with this.

    I would recommend you contact the person currently in charge of the mediation office.

    If this mediator is ALSO an attorney, then the mediator has also possibly violated a Professional Responsibility rule relating to the duty "conflicts of interest", that is to say that if that mediator was also a lawyer, they may have had a legal obligation to disclose to you that the mediator and mother has worked together and then required you to sign a consent that you are ok with the prior relationship; that is an ethic rule that lawyers are required to follow.

    If this is NOT court ordered mediation, and the mediator is NOT an attorney, you have no recourse.
    If this is NOT court ordered mediation, and the mediator IS an attorney, you probably have an ethics violation on your hands and you should contact the mediator, in writing, and outline what steps they can take to help you fix this problem. if they are not able or willing to cooperate, you may want to consider contacting the ethics department of the state bar.

    However, regardless of your scenario, the negativity and emotional pessimism will weaken your legitimate claims and cause you to get dismissed as yet another unhappy person in the system.

    So, the best thing you can do for your child is to separate the two issues.

    One set of issues is your belief that Dad's get the short end of the stick.

    The second is the legal and ethical issue presented for which there may very well be a solution. I have provided you with suggestions on the legal and ethical end of things, but you MUST also find some solutions to deal with the pessimism or negativity (such as therapy, friends that divorced and are positive, co-parenting classes, fathers support groups, etc.).

    As I said, in this area of law, the experiences of custody disputes is so traumatic and ugly for everyone that you must try very very hard to focus purely on the legal and ethical issues that you presented. Do no let any of the negativity sneak into any of the conversations of written communications between you/mediator/ADR office, etc. or you will be taken less seriously and as we know, the person that will suffer the most is your child.

    If this was helpful, please indicate so.

    DISCLAIMER: NO ATTORNEY CLIENT RELATIONSHIP HAS BEEN FORMED. PLEASE CONSULT WITH AN ATTORNEY LICENSED IN YOUR... more
  2. Neil Pedersen

    Contributor Level 20

    Answered . No you have no recourse against the mediator.

    Good luck to you.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed... more
  3. Thomas O. Moens

    Contributor Level 19

    Answered . This would appear to be a clear conflict of interests. Generally mediators are required to disclose any conflicts and withdraw if the mediator feels he or she cannot be impartial. If the mediator believes he or she can be impartial, then it is up to the participants if they would like to continue with this mediator.

    By the very nature of Avvo, you have only provided limited facts and no documentation, therefore, our response to... more

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