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Advisory Opinion 3
The Committee on Ethics of the Georgia Commission
on Dispute Resolution
Issued 5/28/96
Findings of Fact
Complainant and her former husband were divorced in Florida in
1990. Under the terms of the divorce decree, they shared custody
of their son. After moving to Georgia in 1991, they continued under
the terms of the decree, which provided that if they ceased to live
in the same school district, the child would spend one year with
one parent and the next with the other. Since moving to Georgia
the parents lived in the same school district, and the child had
attended the same school. Complainant's former husband remarried
and moved to another county in 1995. Under the terms of the divorce
decree, the child would be with Complainant's former husband during
the 1995-96 school year. Complainant filed an action to modify custody.
Respondent, a psychologist and registered mediator, was hired by
Complainant's former husband to evaluate his son's emotional and
educational status to determine whether it would be detrimental
for him to change schools. According to Respondent, she made it
a condition of her employment that she would be a neutral evaluator
and would report only to the court. Respondent was hired on August
16, 1995, and conducted tests on the child. She interviewed Complainant's
former husband. She had only one brief telephone conversation with
Complainant. After testing the child she told Complainant's former
husband that the transfer to another school would have no detrimental
effect upon him. The evaluation was paid for by Complainant's former
husband.
An emergency hearing was held on August 22, 1995, in superior court.
At that hearing, which took place primarily in chambers with only
the lawyers, and later Respondent, present the court decided to
send the case to mediation. He appointed Respondent to mediate the
case. Both Complainant and Complainant's former husband agreed to
Respondent's appointment. Complainant's attorney prepared the order
which said that Respondent was the mutually agreed upon mediator
and that she would make a report in the best interest of the child
to the court if the parties did not resolve the matter by mediation.
The mediation was held August 25, 1995. Both Respondent and Complainant's
former husband felt that an agreement had been reached. Complainant
says that she never felt that an agreement was reached. A few days
before the hearing that had been scheduled for September 28, 1995,
after it was clear that there was no agreement, Respondent began
to prepare a report for the court. Respondent met once with the
child before the September hearing and once before the November
hearing to ascertain how he was adjusting to the new school. She
testified at the hearing September 28, 1995, and also at the continuation
of the hearing November 6, 1995. The judge who conducted the hearing
and its continuation asked the attorney of Complainant's former
husband to strike out all references to the mediation in the report.
Respondent was instructed not to testify to anything that she learned
in the course of the mediation. At the hearing September 28, 1995,
Respondent told the court that she was concerned about the confidentiality
that she might owe the child. The court said that the privilege
rested with the child and the custodial parent and that Complainant's
former husband waived the privilege. He acknowledged that Complainant
objected to Respondent's testimony about the evaluation of the child
but ruled that Complainant's former husband as the primary custodial
parent had the final decision as to a waiver. Respondent made no
further objection to testifying.
On November 15, 1995, the court entered an order modifying the
Florida judgment. The court awarded joint custody to both parents
but awarded primary physical custody to Complainant's former husband,
giving Complainant what amounted to standard visitation. Complainant
brought a complaint to the Ethics Committee of the Georgia Commission
on Dispute Resolution concerning Respondent's conduct as a mediator.
At the hearing before the Committee Complainant said that she felt
during the mediation that because the Respondent had tested the
child and had spent a greater amount of time with Complainant's
former husband than with Complainant, Respondent had already reached
a conclusion favorable to Complainant's former husband about the
appropriate custody arrangement. Complainant said that when she
agreed to the mediation she did not realize the implications of
accepting a mediator who had already done an evaluation of the child.
Complainant said that as a mediator, Respondent's style was more
directive than that which she experienced during the two previous
mediations. Complainant contends that several parts of Respondent's
report came from the mediation. She also contends that part of Respondent's
testimony at trial came from knowledge that she could have only
gained in the mediation.
Respondent responded that she was concerned about the confidentiality
to which the child was entitled and that she did not want to testify.
When asked if she felt any discomfort about her dual role at the
mediation, she answered, "I'm a psychologist." She also
said that she had never served in this dual capacity before and
that she made the judges aware of her concerns. Complainant's former
husband stated at the hearing before the Committee that nothing
at the hearings was gleaned from the mediation. He noted that the
judge was "very particular" about this.
Discussion
This case presents a troubling combination of ethical issues which
touch on each of the major ethical areas discussed in Appendix C
to the Georgia Supreme Court ADR Rules, the Ethical Guidelines for
Mediators. The appointment of a person who has been involved in
a custody evaluation as a mediator between the parties raises issues
of neutrality and the appropriateness of dual roles. The mediator's
reversion to the role of evaluator after the mediation reached impasse
raises issues of neutrality and a serious issue of confidentiality.
Complainant's complaint of coercion in the mediation session raises
the issue of self determination. Finally, there is an issue of overall
fairness of the mediation process in this case.
The guidelines of the Academy of Family Mediators and the Georgia
Psychological Association, and the Association of Family and Conciliation
Courts to which Respondent referred the Committee, all discuss the
issues involved in this complaint.
The Standards of Practice for Family and Divorce Mediators of the
Academy of Family Mediators provide under the discussion of impartiality
and neutrality (IV (C):
A mediator's actual or perceived impartiality may be compromised
by social or professional relationships with one of the participants
at any point in time. The mediator shall not proceed if previous
legal or counseling services have been provided to one of the participants.
If such services have been provided to both participants, mediation
shall not proceed unless the prior relationship has been discussed,
the role of the mediator made distinct from the earlier relationship,
and the participants given the opportunity to freely choose to proceed.
The Ethical Principles of Psychologists and Code of Conduct of
the American Psychological Association, adopted by the Georgia Psychological
Association, provides in regard to couple and family relationships
( §4.03[b]):
As soon as it becomes apparent that the psychologist may be called
on to perform potentially conflicting roles (such as marital counselor
to husband and wife, and then witness for one party in a divorce
proceeding), the psychologist attempts to clarify and adjust, or
withdraw from, roles appropriately.
The Model Standards of Practice for Family and Divorce Mediation
of the Association of Family and Conciliation Courts provides in
regard to prior relationships (II (B)(1):
A mediator's actual or perceived impartiality may be compromised
by social or professional relationships with one of the participants
at any point in time. The mediator shall not proceed if the previous
legal or counseling services have been provided to one of the participants.
If such services have been provided to both participants, mediation
shall not proceed unless the prior relationship has been discussed,
the role of the mediator made distinct from the earlier relationship
and the participants have been given the opportunity to freely choose
to proceed.
Respondent has provided the Committee with articles collected by
Gail L. Perlman and Arnold T. Shienvold under the title "The
Integrated Child Custody Evaluation: Using Mediation in Evaluations."
These articles demonstrate the controversy in the fields of mediation
and psychology around the subject of the use of one neutral to perform
the functions of mediator and custody evaluator. This brief introduction
to the problem makes it clear that the area is fraught with danger.
The authors of these several articles, who are in disagreement about
the wisdom of a psychologist accepting dual roles, agree that if
dual roles are accepted, it is essential that the roles be defined
very carefully and their differences discussed thoroughly with the
parties. There is great danger that even if the roles are carefully
delineated and discussed with the parties, misunderstanding can
result.
Conclusions
The effective date of the Ethical Guidelines for Mediators [whether
that date is the September, 1995, date of the Commission's passing
the guidelines or the December 13, 1995, date of the Supreme Court
order creating Appendix C] occurred after the custody evaluation
of the child, after the mediation, and after at least the September
hearing. Therefore, there is a threshold jurisdictional issue in
this case. This is true even though a draft of the guidelines had
been mailed to every registered neutral, including Respondent, during
the winter of 1995 and prior to any of the events in this case.
Because of this jurisdictional issue, the decision which follows
is advisory only.
- Neutrality. Respondent was placed in an awkward situation by
the court's appointing her as mediator. She and her attorney emphasize
that Complainant made no objection and that Complainant's attorney
prepared the order appointing Respondent. However, the ethical
guidelines for mediators set out above require that when a mediator
has served one party in a professional capacity in the past it
is not appropriate for that person to act as a mediator. If the
mediator has served both parties the mediation may proceed following
a thorough discussion of the relationship if the parties freely
choose to proceed. There is no indication that Complainant ever
considered herself the client of Respondent. Before the emergency
hearing, she had only one brief phone conversation with Respondent.
Even though Respondent identified her role as that of neutral
evaluator and made it a condition of her employment that she report
only to the court, there is every indication that Complainant
considered Respondent to be Complainant's former husband's expert.
Under these circumstances, her neutrality was bound to be suspect.
In addition, Complainant's former husband had reason to believe
that he was in a strong position going into mediation because
Respondent had informed him prior to either the emergency hearing
or the mediation of her opinion that the transfer of the child
to a different school would have no detrimental effect upon him.
Although Respondent expressed concern about the relationship to
the court there is no evidence that she asked to be relieved from
the appointment as mediator.
- Confidentiality. The portion of transcript furnished to the
Committee shows that when asked to testify at the September 28,
1995, hearing Respondent told the court that she was concerned
about the confidentiality that she owed the child. There is no
indication that she voiced a similar concern to the court about
the confidentiality that she owed the parties to the mediation.
Even though the court ruled that information gained from the mediation
was not admissible, it is impossible to believe that the testimony
was not influenced by information and impressions gained during
the mediation.
- Self-Determination. There are two issues regarding self-determination
in this matter. First, there is an issue of whether the parties
agreed to the mediation by Respondent voluntarily or whether they
were ordered into the mediation process with a neutral who had
been hired by one of the parties in another professional capacity.
Although both parties ostensibly agreed to Respondent as the mediator,
there was no attempt to thoroughly explore the question of dual
roles. This level of voluntariness is required under the standards
of the Academy of Family Mediators, the Georgia Psychological
Association, and the Association of Family and Conciliation Courts.
Respondent considered herself bound by the standards of these
bodies. Unlike the Ethical Guidelines found in Appendix C, these
standards were all in existence at the time of the events in this
case.
Secondly, the issue of coercion has been raised. Another aspect
of the damage that an appearance of bias can cause is the impression
that the mediator is driving the parties towards a particular result.
Whether this was the mediator's actual intention would be impossible
to determine unless one participated in the mediation. However,
the potential for a party to come away from the mediation feeling
coerced is great if there is an impression that the mediator is
biased.
In conclusion, the Committee recommends in the strongest terms
that courts never appoint a mediator who has served the parties
in any other professional capacity. The Committee further recommends
that the court never allow a mediator to testify in a hearing involving
parties to the mediation under any circumstances other than those
that might arise in the context of one of the exceptions to confidentiality
spelled out in the Supreme Court Alternative Dispute Resolution
Rules. Finally, the Committee recommends that a mediator appointed
by the court to mediate between parties with whom he or she has
another professional relationship or asked to testify in a hearing
involving parties to the mediation should decline to serve or to
testify unless disobedience of a clear order of the court would
put the mediator in danger of being found in contempt of court.
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