Do mediators make recommendations to the courts?
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Mediation is an out of court process where a neutral mediator listens to both parties in a prospective case and helps them reach an agreement. There are two types of mediators, a private mediator and a court-appointed mediator, each of which determines the mediator’s role and whether or not they have the ability to make recommendations to the courts.
The first type of mediator is a private mediator. This mediator is hired completely outside of court, sometimes due to a contractual requirement to mediate. The mediator is neither directed by the court nor are they allowed to deal with the court in any way. In fact, unless this mediator is an attorney, they cannot even file your paperwork to describe an agreed upon settlement to the court.
In California, for example, mediators are specifically forbidden from making any "report, assessment, evaluation, recommendation, or finding" concerning the mediation. While California mediators may express their views to you in a private session, they cannot tell the court what they think of your case.
The second type of mediator is a court-appointed mediator. Not all states even have this type of mediator and those that do are still in the process of defining their exact roles. This second type of mediator will file a report to the court detailing how the court-appointed mediation went and in many cases may be instructed to make a recommendation to the court if the parties did not reach an agreement on their own.
Looking back at California mediators is a good way to see the difference. On the California court-appointed divorce mediator website it states: “The mediator's job is to make recommendations to the judge. In some counties, if you and the other parent can't agree on a parenting plan through mediation, the mediator is asked to give the court a written recommendation. It will contain the mediator's opinion about what parenting arrangement will be in your child's best interest.”
The mediation process is still a work in progress in most states. In fact, most states do not have specific rules about what a mediator can tell a court, so it's very important for you to find out whether the mediator has any authority or requirement to report to a court before mediation begins. If you feel uncomfortable with the mediator’s role, you have the right to refuse mediation and instead move the case directly to trial.
If you have any questions or concerns about your state’s mediation process, contact a trial attorney in your area for guidance as to whether mediation would be a useful tool for your case.