V. Impinging of the Role of the Mediator by Mandated Reporting
Mandated reporting for mediators will impact the Model Standards. If mandated reporting is implemented for mediators, the Model Standards will be impacted. Specifically, issues arise regarding the quality of the process, mediator impartiality and confidentiality. Reporting allegations and/or suspicions will distract from the true purpose of mediation.
According to the Model Standards, a mediator can report ongoing crime. Mediators are already permissive reporters. Mandated reporting laws were developed to require reporting of abuse or neglect by professionals that took an affirmative duty to protect vulnerable individuals. Mediators have not accepted this duty and should not be required to report all instances of abuse or neglect. Furthermore, mediators in court connected mediation are already deemed mandated reporters.
In family law, false allegations are made. A question is presented as to what type of evidence the mediator would need to make a report. Questionably, the standards would need to be evaluated to determine if they should be the same as say a psychiatrist. A psychiatrist would know the individual and would know if the threated action is plausible. A mediator might spend a few hours or even a few days on one case whereas a psychiatrist usually has a longer relationship with the potential perpetrator. Professionals required to report are better trained to make these reports.
Furthermore, a reporting requirement would hinder effective communication between parties. Participants cannot speak candidly and might even hold back on relevant information for fear that the information might be used against them in some type of way. A woman might not report the abusive husband even though both parties are aware of it. The woman could fear for her life if the soon to be ex-husband could face criminal charges because of her allegation. However, this information might help the mediator resolve the dispute between the parties or explain why the woman is so adamant about no visitation for her estranged husband.
Another concern would be whether or not a mediator could remain impartial. Would the allegations cause the mediator to recuse himself from the mediation? In some cases, the mediator would feel biased and would not have a choice but to end the mediation leaving parties to either find a new mediator or pursue the case using traditional means. The truth of the allegation would not necessarily matter if the mediator believed that it would reasonably be true. Also, if the mediator did report the mediation, the accused party might feel betrayed by the mediator in some way. This would take away from the integrity of the mediator. The participants would lose the ability to determine the outcome of the mediation. The parties would still have their dispute, investigations would take place, and the mediator would lose the mediation.
VI. Mediators Furtherance of California Law Through...