by Suzanne M. Duvall
May a case worker for Family Court Services participate in and/or assist in the mediation of a case to which the case worker has been assigned? Would your answer be different if the case did not settle at mediation or before trial?
John Zerpopoulus, Dallas
I think that y’all are wise to consider implications of the arrangement of teaming the custody evaluator with the mediator in mediation. In my opinion, the arrangement has potential problems that could seriously compromise the evaluator’s testimony when the mediation does not settle.
As you know, a custody evaluator is appointed by the court to conduct an evaluation to provide information to the court, with a report and possible testimony, regarding the evaluation findings. That task should be jealously protected by the evaluator. The appointing order never states that an evaluator can assist in mediation. Mediators mediate. Court-appointed evaluators do evaluations. Mixing those roles raises legitimate dual-relationship problems.
Probably (just an educated guess) the mediation with assistance from a custody evaluator would withstand a challenge to get behind the door of confidentiality—of course, that might depend on the judge. In my opinion, the bigger problem will occur if the mediation fails and the evaluator gets on the stand and suddenly has new information about the examinees beyond the methods of the evaluation he/she conducted. How does that information affect the evaluator’s testimony? Was there anything in the consent form that the examinees signed, mirroring language from the Appointing Order, stating that information informing possible testimony may come from sources outside the evaluation itself? Was such new information gathered in the reliable manner emphasized by Chapter 107, Subchapter D of the Texas Family Code or by the child custody guidelines developed by the Association of Family and Conciliation Courts (AFCC) or the American Psychological Association (APA)? (No). Did the evaluator seek the court’s permission to exceed the boundaries of the Appointing Order? What if the evaluator learns new things about the examinees in mediation, a confidential process? Will that new extra-evaluation information adjust the evaluator’s recommendations?
The evaluator may have gotten consent from the attorney/client to participate in the mediation. But the court-appointed evaluator’s client is the court, not the examinees or their attorneys. Thus, in my opinion, examinees and their attorneys are not in a position to offer such consent. In difficult cases or in cases that are close to settling, many attorneys will agree to almost any arrangement that will help their clients cross the goal. But rest assured that when the mediation fails, the attorney on the short end of the evaluator’s recommendations will challenge the methodology and dual evaluator/mediation relationship that underlies the evaluator’s opinions and recommendations. Then all the evaluator’s work and the hoped-for assistance to the court may go out the window. When I did evaluations several years ago, I often got phone calls from attorneys in the middle of mediation asking my opinions about certain parenting arrangements. My policy then was to politely decline giving any information. If the parties had my completed report, they could refer to that. If the report was not yet completed, I was not going to give “interim opinions” before I filed my report with the court.
This might be similar to a situation we’ve all dealt with in the past—that of a benevolent evaluator trying to use the evaluation time to do short-term therapy or otherwise resolve the case for the “best interest of the child.” Of course we know this is improper. In my opinion, the evaluator participating in the mediation is similar.
Melanie Grimes, Dallas
Many Texas counties conduct most of the custody evaluations in their jurisdiction. Sometimes one of the caseworkers serves as mediator (they are all trained). If there was a custody evaluation investigation, the mediator can bring in the caseworker who handled the custody evaluation to assist, after obtaining attorney/client consent. The problem is that because the caseworker handles a non-confidential process (custody evaluation) and mediation is confidential, then it is not correct to allow the caseworker to participate or assist in the mediation. The specific concern is that if the case does not settle, the caseworker will have to testify and thereby break the confidentiality rule.
Even if a department has had a lot of success teaming the mediation and the caseworker, the confidentiality issue could put the caseworkers in a conflicted/unethical situation. What issues do you see here and what possible procedures could be used to obviate them?
Since the case worker who handled the custody evaluation investigation may only participate in mediation with consent of the attorneys and clients, on the surface, there may not be an ethical issue here. And, if I were the party that was not favored in the custody evaluation, I believe I would find this practice both disturbing and unethical. As almost always, whether this scenario is unethical depends; if the caseworker who participated/assisted at mediation were to limited to sharing in court only what was learned or occurred outside the mediation, then this practice may fall outside the mediation confidentiality rule.
Although it might be both convenient and helpful to have the custody evaluator present at the mediation, and that person might even be helpful in settling the case in most instances, the better view is that the risk is too high, even if that risk is realized in one case out of many. Those risks include compromising the confidentiality of the mediation process and the validity of the evaluator’s report.
Arguably, the same conclusion can also be arrived at if other potential expert witnesses/evaluators were to take an active role in a mediation.
Suzanne M. Duvall is an attorney-mediator in Dallas with over 800 hours of training in mediation, arbitration, and negotiation. She has mediated over 2,500 cases and serves as a faculty member, lecturer, and trainer for numerous dispute resolution and educational organizations in Texas and nationwide. A former Chair of the ADR Section of the State Bar of Texas, Suzanne has received numerous awards for her mediation skills and service. She has also been selected “Super Lawyer” 2003–2015 by Thomson Reuters and the publishers of Texas Monthly, and been named to Texas Best Lawyers 2009–2016 and Best Lawyers in America 2014–2016. She is a TMCA Distinguished Mediator, the highest designation given by the TMCA. She can be reached here.