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Illinois family mediations: the case against allowing GALs: because attending family mediation will not help GALs perform their duties and their presence may be harmful - especially to the extent it compromises confidentiality - GALs should be excluded, the author argues.

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Suppose you've been appointed a guardian ad litem in a child custody case and then learn that a mediation was underway (for more on the GAL's role, see Helen Gunnarsson's article beginning on page 572). Should you attend? Or suppose you're an attorney who just sent clients to mediation of a custody matter. Have you wondered if the GAL would attend the mediation? Should GALs participate in mediation?

The answer is no. I'll explain.

The Illinois Supreme Court, in its rules on child custody proceedings, outlines a sequence of steps courts should take in handling child custody matters. (1) Under Rule 923, courts consider mediation at the initial case management conference. The appointment of a GAL should not occur until the full case management conference, some months later.

Following this suggested sequence would ensure that GALs do not attend mediation because they would not be appointed until mediation has been completed. This article will explain why that suggestion should be followed.

A look the GAL and family mediation

Background. Family mediation is a process of resolving disputes through communication and negotiation. (2) The mediator helps the parents identify the issues to be discussed, assists during discussion, and aids the parents in identifying and evaluating possible options for resolution. Even though parents may be required to attend mediation, they are not required to reach an agreement. (3)

Mediators do not make a recommendation to the court because their duty is to the parents (4) and their goal is to empower the parents to make their own decisions.

In the context of custody disputes, mediation can resolve a significant portion of issues and has a "positive impact even when custody issues are not resolved." (5) Mediation "focuses the parties' attention on the needs of the child and helps parties to be realistic in their expectations regarding custody." (6) Each judicial circuit in Illinois is required to establish a program of family mediation for cases involving child custody or visitation disputes. (7)

The role of the GAL in mediation is unclear. The use of mediation in family cases developed after the use of GALs was well established. Neither the Illinois Marriage and Dissolution of Marriage Act nor the Illinois Supreme Court Rules on Child Custody Proceedings directly address the role of the GAL in mediation.

By assigning the GAL the duty of helping resolve custody disputes, some might argue that the GAL should play a role in mediation. But should they?

Dubious benefits. There are several reasons one could argue for GALs attending mediation. First, the GAL might learn a great deal of information helpful to determining the best interests of the child. Second, where there are concerns about the safety of a child, the GAL might learn about them and better protect the child by reporting them to the court.

Yet for years, GALs have achieved these purposes without attending mediation. Attending mediation would not substitute for the interviewing, investigating, and other duties assigned to the GAL by Illinois Supreme Court Rule 907. (8)

The third reason GALs might attend mediation is to serve as an agent of reality for the parents. GALs are likely to be familiar with the local court and thus able to help parents understand what the court might do if they do not reach an agreement. An effective mediator, however, will provide for this same reality check.

Finally, in the occasional case, the parents may determine that they could benefit from the evaluation or report of the GAL to help them overcome impasse in mediation. (9) In such a case, the parties may ask the court to appoint a GAL and wait for the reports before they reconvene the mediation without the GAL in attendance.

Thus, while there are some benefits for the GAL to attend mediation, none of these benefits require GAL attendance. These benefits are outweighed by the harms to mediation.

Potential dangers. There are several potential harms if the GAL attends mediation. The first is that the GAL may rely on the mediation observations in lieu of a traditional investigation. If so, the GAL would fail to fulfill the duties assigned to the GAL by Illinois Supreme Court Rule 907.

Further, the GAL may obtain a distorted view of the family from the mediation sessions. Even though the mediator is not the judge, the parties often "compete with each other as to who is the better parent." (10) The parties exaggerate or misstate facts to favor themselves and disfavor the other.

The GAL will gain a more realistic view by observing the family in a more natural setting. Without a traditional investigation, the GAL may miss information that could be provided by neighbors, babysitters, teachers, and others "possessing special knowledge of the child's circumstances," (11) but not present in mediation.

The second harm is the possible confusion that may arise because the purpose of the GAL is not always consistent with that of the mediator. Even though GALs are charged with attempting to resolve the dispute, their traditional purpose is to assist the court in making a decision about the children if the parents cannot. In contrast, the purpose of family mediation is to assist the parents in reaching their own resolution of family disputes through a voluntary agreement. (12)

Depending on how the GAL pursues his or her duties, the GAL's role may conflict with that of the mediator. Parents may be confused when these two professionals pursue potentially opposing goals.

Third, the presence of the GAL in mediation may undermine the confidence of the parties in the GAL report, if one is later needed. If the GAL takes an active role in mediation, especially in acting as an agent of reality or in advocating for the children, the parents may perceive the GAL as favoring one side or another. That perception will threaten the credibility of the GAL's report and recommendation.

Fourth, and most important, the presence of the GAL may destroy the confidentiality of mediation.

The GAL and mediation confidentiality: the Illinois Uniform Mediation Act

The Illinois UMA ensures confidentiality by creating a privilege protecting against the use of statements made during mediation in later legal proceedings. Because of this privilege, the parties, mediator, and nonparty mediation participants "may refuse to disclose, and may prevent any other person from disclosing, a mediation communication." (13)

GALs are the eyes and ears of the court and therefore may feel obligated to report to the court what was learned in mediation. The mediation privilege may empower the parents to prevent the GAL from making reports to the court. If the GAL makes a disclosure to the court without advance notice, the parents will feel betrayed. The promise of confidentiality will not be fulfilled. Even if the parents have advance notice and object to the report by having it quashed, the court, as decider of fact, will have gained the information.

Should a parent assert that the UMA prevents the GAL from making disclosures, it is uncertain how the court would rule. The UMA does not specifically address the issue of a GAL. The purpose of the UMA is to create a broad protection for confidentiality, with a few carefully defined exceptions.

While there is no exception for the GAL, some courts might be tempted to create one. Expanding the exceptions by judicial interpretation, however, would undermine the privilege which exists to serve an important public policy--promising confidentiality encourages parents to be honest so they can resolve their own disputes about their children.

If courts were to permit GALs to attend mediation, a number of problems could arise because of concerns about confidentiality. Parents may refuse to attend because of fear that the GAL will use information gained at mediation. Because courts often order parents to attend mediation, parents would risk being in contempt of court if they failed to attend.

Alternatively, parents may attend but refuse to be honest because of the fear that the GAL will disclose or misinterpret their comment. If the parents are reluctant to be honest, they will not likely reach resolution or reach a resolution impaired by lack of information.

The better argument is not to permit GALs to disclose information gained in mediation to the court. The best means of avoiding this problem is for GALs not to attend mediation.

A recommended approach

The value of both family mediation and the GAL was recently reaffirmed when the Illinois Supreme Court adopted the Rules of General Application to Child Custody Proceedings. The ideal solution is one that would preserve the benefit provided by GALs through their thorough investigation into custody disputes, as well as preserve the benefit that family mediation offers for helping parents resolve disputes about their children. These dual goals can be met if courts take several steps.

First, courts should adhere to the timing mandated by the Illinois Supreme Court rule of case management conferences. The current Illinois Supreme Court Rule 923 provides for GALs to be appointed at the full case management conference held after the mediation. (14) If courts wait and follow this timetable, the issue of the GAL in mediation will not arise.

Nevertheless, there may be occasions where courts will appoint GALs while mediation is still underway, or mediation may reconvene sometime after the full case management conference has been held and GAL appointed. Where GALs might be appointed before mediation is completed, courts should direct GALs not to attend mediation. The court should clarify that the GAL is not to attend mediation or investigate further until the mediation is concluded, unless agreed otherwise.

Third, the judicially required training for those representing children should include a discussion of the potential harms to family mediation if the GAL attends.15 The Rules mandate education for GALs, including a discussion of the roles of the GAL, and that education should address the issues discussed here as well.

Fourth, attorneys should promote the dual goals of preserving GALs and family mediation by objecting to any appointment of GALs until after mediation is completed without resolution.

Finally, GALs should learn more about mediation, its purpose, the role of the mediator, and the importance of confidentiality in mediation. By doing so, they will understand that their role should begin only when, and if, the parents are unable to reach agreement in mediation.

Conclusion

Family courts benefit from family mediation, which helps parents resolve issues involving their children without the intervention of the courts. They also benefit from having GALs, who serve as their "eyes and ears" when parents cannot agree about custody of their children.

As judges, attorneys, GALs and parents more fully understand the issues involving the role of GALs and the purpose of mediation, they should work together to ensure and protect the contributions of each. The best way to do this is by excluding GALs from family mediation.

GAL and counsel for same juvenile: no inherent conflict, court rules

Like mediation, juvenile court is another setting where questions about the GAL's role can arise. In a pair of recent cases from the fourth district, the Illinois Appellate Court ruled--contrary to some courts outside Illinois--that it's not an inherent conflict for a lawyer to serve simultaneously as counsel to and GAL for a juvenile in a delinquency proceeding."As this court has previously stated, '[t]he roles of guardian ad litem and minor's counsel are not inherently in conflict' because 'both have "essentially the same obligations to the minor and to society"'" In re Rodney S., 402 Ill App 3d 272, 278, 932 NE2d 588, 594 (4th D 2010) quoting In re J.D., 351 Ill App 3d 917, 920, 815 NE2d 13, 15 (4th D 2004), quoting In re R.D., 148 Ill App 3d 381, 387, 499 NE2d 478, 482 (4th D 1986); In re Austin M., No 4-08-0435, 2010WL 3331382 (4th D 2010).

(1.) Ill S Ct Rule 923.

(2.) 710 ILCS 35/2(1). Illinois Uniform Mediation Act.

(3.) Model Standards of Practice for Family and Divorce Mediation, developed by The Symposium on Standards of Practice (August 2000), available at http://www.afccnet.org/pdfs/modelstandards.pdf. The general rule of court-ordered mediation is that while parents are required to attend mediation, they are not required to reach a resolution of the disputed issues. "A family mediator shall inform the participants that they may withdraw from family mediation at any time and are not required to reach an agreement in mediation." Id at 2.

(4.) 710 ILCS 35/8. Illinois Uniform Mediation Act.

(5.) Ill S Ct Rule 905. Committee Comments.

(6.) Id.

(7.) Ill S Ct Rule 905(a).

(8.) Ill S Ct Rule 907.

(9.) Kimberlee K. Kovach, Mediation: Principles and Practice, 243 (West 3d ed 2004). Generally Chapters 6, 7, and 10.

(10.) Art Hinshaw, Mediators as Mandatory Reporters of Child Abuse: Preserving Mediation's Core Values, 34 Fla St U L Rev 271, 296 (Winter 2007).

(11.) Ill S Ct Rule 907(c).

(12.) 710 ILCS 35/2(1).

(13.) Id at 35/4(b).

(14.) Ill S Ct Rule 923(b).

(15.) Ill S Ct Rule 906(c).

Suzanne J. Schmitz is an assistant professor at Southern Illinois University School of Law, where she teaches alternative dispute resolution and is a family mediator for the first circuit. She was formerly coordinator of the ADR Clinic of SIU. She thanks Trevor Burggraff, JD and Richard A. Garcia, JD for their extensive research and editorial assistance. This article is adapted from Suzanne Schmitz, Guardians Ad Litem Do Not Belong In Family Mediation, 8 Pepp D Res L J 221 (2008).
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Author:Schmitz, Suzanne
Publication:Illinois Bar Journal
Date:Nov 1, 2010
Words:2263
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