Guardians Ad Litem Do Not Belong in Family Mediations

A Guardiam Ad Litem (GAL) is valuable to the resolution of custody disputes because the GAL evaluates the facts concerning the dispute and recommends to the court what are the best interests of the child.5 Mediation is valuable because parents can determine their own decisions regarding their children. However, where appointing a GAL threatens the value of mediation, there is a risk to mediation. A simple solution to avoid this threat is to refrain from appointing a GAL until after mediation has been attempted or, if one is appointed prior to mediation, to excuse the GAL from mediation. This article explores whether that solution is consistent with the purpose for which GALs are appointed and the purposes of family mediation.

This article begins with a discussion of the role of the GAL and a discussion of the purpose of family mediation in Part II. Part III analyzes the benefits and harms if the GAL attends mediation. Part IV discusses the mediation evidentiary privilege of the Uniform Mediation Act (UMA) and its effect on the GAL. Next, Part V discusses the harms to family mediation if mediation confidentiality is compromised by the presence of the GAL.

Finally, the article concludes with several recommendations to courts, mediators, lawyers and GALs in Part VI.