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Thursday, May 15, 2014



By Laura Ann Welzig, Student at the William S. Boyd School of Law

During the 2014 spring semester, I did a directed reading on mediator ethics. As I researched, I was surprised to learn that Nevada currently does not require mediators to report allegations of child abuse or neglect that arise during child custody mediations. Initially, I thought this was wrong because, quite obviously, mediators should be required to report allegations of child abuse. But, as I delved into the public policy reasons behind mandatory reporting requirements for certain types of professionals, I discovered that this issue is more complicated than it seems. Mediators, as third party neutrals, occupy a unique position that sets them apart from other professionals. This unique position needs to be considered when determining their reporting responsibilities.

Most states have mandatory reporting laws. Mandatory reporting laws impose a duty on certain professionals (mandatory reporters) to report suspected child abuse or neglect, usually to some governmental or child welfare services agency. Professionals designated as mandatory reporters include doctors, nurses, other medical professionals, teachers, therapists, and social workers. One of the main reasons behind these reporting requirements is that these professionals are frequently in the unique position to observe the children and their behavior. (Ellen Waldman, Mediation Ethics Cases and Commentaries pg. 259).

Art Hinshaw, in his leading article arguing why mediators should be mandatory reporters in child custody cases, asserts that including mediators as mandatory reporters furthers the goals of mandatory reporting laws. Because mediation is so prevalent in child custody cases, mediators may often be the first to hear child abuse allegation. Arguably, then, if mediators are mandatory reporters, these cases will get into the child protection system more quickly. In turn, this should ultimately “result in the earlier provision of needed social or therapeutic services and thus provide better results for children in need of such services” (Hinshaw, pg. 293).

As a third party neutral, a mediator’s role is to act as a facilitator for the mediation, not to render judgment or make decisions; the decision making is left to the parties. Because of this unique role, a mediator’s impartiality is central to the mediation process. When parties perceive that a mediator is impartial, parties are more likely to be open and honest with the mediator.

Open and honest dialogue is vital to a successful mediation because mediators use the information provided to them to ask the parties additional questions, with the intent to facilitate discussion and help parties reach a resolution. If mediators are required to file a report based on allegations heard during mediation, then parties may hesitate to be open and honest during the mediation, fearing that the mediator will not act as an impartial third party. In child custody mediations, in particular, if the parties know that a mediator must report child abuse and neglect allegations, the parties might even withhold information, even if no abuse is taking place. Or, one party may exaggerate the facts, in hopes that the mediator will report the other party.

I will use a couple examples to illustrate my point. During a child custody mediation session, let us assume that a mother tells the mediator that the father is “very aggressive” and “loses his temper very easily.” She goes on to say that she does not think the children are safe with him. The children are not present during the mediation so the mediator cannot examine, question, or even see the children. Furthermore, it is likely the mediator has never met the children and therefore has not established a familiarity with the child’s behavior. At this point, if the mediator makes a report, confidence in the mediation process is lost because the “accused party is likely to believe the mediator is biased and the parties are at the mercy of what CPS [Child Protective Services] determines should happen.” (Hinshaw pg. 297).

In contrast, let us assume that during an examination, a doctor notices external wounds and bruising on a young child. The doctor will inquire as to what happened. Even if the doctor gets an evasive response or excuse, as a medical professional, the doctor has the opportunity, training, and the expertise to investigate further. If, after further investigation, the doctor becomes fairly certain that the child suffered abuse from an adult, then, as a mandatory reporter, the doctor reports the suspected abuse to authorities. And, although a parent in this situation might also feel at the mercy of CPS, a doctor’s role, unlike a mediator’s role, is not to remain neutral.

Although both a doctor and mediator must maintain confidentiality, a doctor’s role, by definition, is to promote health through investigating, diagnosing, offering medical advice, and prescribing medicine, if necessary. In contrast, a mediator’s role requires neutrality, impartiality, and promoting voluntary decision making. (Hinshaw, pg. 283). Moreover, unlike a doctor, who has both medical training and the opportunity to draw informed conclusions, a mediator does not.

Certainly, arguments can be made on both sides of this issue, but what all of this suggests to me is that a mediator’s role is fundamentally different from other mandatory reporting professionals, such that requiring mediators to be mandatory reporters would not further the goals of either mandatory reporting laws or mediation itself.