The role of a guardian and mediation

I write regarding your prior call and email on the general topic of ethical and legal bars to a Guardian ad Litem serving as both a Guardian ad Litem and Mediator under the laws of the State of Texas. I greatly appreciate your service in this case and we are new in working together so I offer this considered feedback with great deference.

The Ethical Guidelines of Mediators, Misc. Docket No. 05-9107, promulgated by the Texas Supreme Court and Codified in the Texas Family Code requires that mediators are bound to confidentiality and not disclose the contents of mediation. The guidelines read in relevant part: “[a] mediator should protect the integrity and confidentiality of the mediation process. The duty to protect the integrity and confidentiality of the mediation process commences with the first communication to the mediator, is continuous in nature, and does not terminate upon the conclusion of the mediation.”

While a guardian appointed under Chapter 107 of the Texas Family Code is specifically authorized to “encourage settlement and the use of alternative forms of dispute resolution”, nothing about the appointment of a guardian under Chapter 107 maintains confidentiality in the course of encouraging settlement – in fact these conversations and exchanges in communication are specifically discoverable.  Whereas, however, a specific duty imposed upon a parenting coordinator appointed under Chapter 153 is “settling disputes regarding parenting issues and reaching a proposed joint resolution” and is specifically required to comply with the same ethical guidelines for a mediator, including confidentiality.

In my opinion, if it were the intent of the legislature for a Guardian ad Litem to serve also as mediator, the legislature would have likewise included requirements that the Guardian ad Litem serve according the ethical guidelines of mediators and pursuant to the mediation qualifications (40 hours) as stated elsewhere in the Texas Family Code regarding confidential appointments (Chapter 153: Parenting Coordinator) and actual Family Law Mediators (Chapter 6 and 153).

In the course of mediation, any information received by the Guardian ad Litem (assuming the Guardian ad Litem is acting as mediator), could not on one hand be testified to by the Guardian ad Litem at trial.  This limitation would diminish the role of the Guardian, as required advocate for the best interests of the subject child(ren) and, given that communications with the Guardian Ad Litem are specifically discoverable, it could necessarily place the Guardian at conflict with her duties to the Children in attempting to work the parties to a place of agreement.

For example, the Guardian ad Litem owes an express duty to their client, the subject child(ren) of the case, and cannot at the same time serve as a representative and advocate of the best interests of the child and mediate a dispute between parents.  You can imagine the pitfalls where the parties may agree to settlement options which the Guardian does not believe not in the best interest of the child(ren), immediately placing the Guardian in a conflict and in the role of breaking neutrality as a mediator and require the Guardian to advance a position adverse to one or both of the parent’s position.  As you know, breaking neutrality as a mediator is specifically prohibited under the ethical guidelines for mediators and the ethical guidelines for mediators states the mediator “should not coerce a party in any way. A mediator may make suggestions, but all settlement decisions are to be made voluntarily by the parties themselves.”

While the Guardian is not technically a party to the case, she/he are tasked with representing the best interest of the minor child(ren) before the Court.  While I would like to believe no Guardian would ever attempt to actually coerce a party in a suit to reach agreement, in this dual role you can imagine that if the Guardian was likewise serving as a mediator that there would be an unspoken and yet implied reality that if the party did not agree with the Guardian’s position at mediation that this might be factored against them when the Guardian issues a report and recommendations to the Court.

Accordingly, I do not believe that a guardian can facilitate a formal mediation.  I do believe a Guardian can suggest ideas, alternatives, and encourage settlement and I have worked with Guardians who are successful in doing so.  However, keep in mind that these discussions are not protected from discovery and would not fall under the protection of “settlement discussions”.  In fact, I recently tried a case where the Guardian was required to testify to all of their conversations over a course of about 5 meetings between the Guardian and the parties.  It benefitted my case, so I said nothing.  Had I wanted confidentiality and protection under settlement discussions, I would have insisted on formal mediation or exchanges of settlement correspondence.  It has been my experience, that the Guardian includes the attorneys in these discussions by way of keeping me in the communication loop so as I can advise my client accordingly as things progress and consider how any and all of this might impact the ultimate case.

As stated in prior conversations, your encouragement to the parties to seek settlement options is highly valued and I am skeptically optimistic that an agreement can be reached.  I am always ready and willing to reach agreements to allow parties control over their own outcome and pursue what they believe is the best interests for their own children.  However, it seems Mr. Maler is blinded by the litigation, which his Attorney’s tactics and style has largely driven, and is unwilling without a court imposing an Order.  If the parties are able to reach terms with your assistance, I would ask not that you “write it up” but that we meet or conference so that the Attorneys can write the agreement and have it formally entered with the Courts.

Otherwise, there is an abundance of affordable and experienced mediators who can help the parties to settle and side step the ethical and legal potholes referenced herein above.

Thank you for your consideration.

Respectfully,

James W. Evans

Attorney for Petitioner

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