The Guardian <i>Ad Litem</i> As Mediator

In order to try and make some sense of all of this, courts will often appoint, depending on the age of the children, either attorneys for the minor children or guardians ad litem. For the most part, the attorney for the minor child has a pre-scripted role, – that is to represent the client's wishes – and the child's lawyer is bound, as are all attorneys, by a code of ethics that protects and guides this relationship. The guardian ad litem, on the other hand, serves to represent the best interests of the children, rather than the children themselves. Typically, the determining factor in this decision focuses on the age and capacity of the children involved.

Although at times interchanged in the past, the roles of the attorney for the minor child and the guardian ad litem have clearly delineated differences. It is in this capacity, and it is based on this distinction, that the skilled guardian ad litem can go well beyond the fact-finding and recommending role that typifies it. Although these functions may eventually be required, the process would be vastly improved if the initial role served by a guardian ad litem were that of a mediator.

Conclusion

Having a skilled guardian ad litem gather facts and make recommendations to the court is easily worth the several thousands of dollars it costs. However, having a skilled and knowledgeable impartial party – that is impartial as between the mother and father – who is able to initiate and lead efforts to help the parties resolve their differences is truly priceless. Given appropriate training and skills, the guardian ad litem can reinvent the role to better serve the children and the entire family. Who better to facilitate the multi-party dialogue, find the joint interests, frame the shared concerns and focus on the common ground?

Although issues affecting confidentiality would need to be discussed and clearly understood by all the parties, that should not deter nor diminish this process. The guardian ad litem's role would in many ways resemble the role of a neutral in a hybrid mediation process such as med-arb. As in med-arb, the neutral would work initially to help the parties voluntarily resolve the matter, but, if there is no agreement, the neutral then renders a recommendation or a finding. In this expanded role, and with this shift in priority and focus, the guardian ad litem can work to bring all the parties to the table, and rather than ducking behind it for cover, they can rally around it in the best interests of the children.

In the high-conflict divorce, try as it may, a court has little to offer minor children caught in Mom and Dad's crossfire. Regrettably, in many, if not most, instances, the more resources directed toward high conflict divorces, the more opportunity for escalating the conflict, unintended though it may be. One of the reasons for this entrenching of positions seems to be the identification of a specific role with its concomitant stance for everyone involved.

Battling spouses by definition must be diametrically opposed to whatever the other thinks is a good idea or considers fair, reasonable or in the best interest of the children. This is a basic tenet of high-conflict divorce. Enter divorce litigators. This spousal polarity is reinforced, if not out-and-out encouraged, by their legal posturing and advice to “shoot-for-the-moon.” Very few divorce litigators worry about what's fair and reasonable, especially if it's moneyed high conflict. Now come the kids. The children have, hands down, the toughest lot. Adversarial divorce places children squarely in the middle of the fray with no cover.

Guardians(s) Ad Litem

In order to try and make some sense of all of this, courts will often appoint, depending on the age of the children, either attorneys for the minor children or guardians ad litem. For the most part, the attorney for the minor child has a pre-scripted role, – that is to represent the client's wishes – and the child's lawyer is bound, as are all attorneys, by a code of ethics that protects and guides this relationship. The guardian ad litem, on the other hand, serves to represent the best interests of the children, rather than the children themselves. Typically, the determining factor in this decision focuses on the age and capacity of the children involved.

Although at times interchanged in the past, the roles of the attorney for the minor child and the guardian ad litem have clearly delineated differences. It is in this capacity, and it is based on this distinction, that the skilled guardian ad litem can go well beyond the fact-finding and recommending role that typifies it. Although these functions may eventually be required, the process would be vastly improved if the initial role served by a guardian ad litem were that of a mediator.

Conclusion

Having a skilled guardian ad litem gather facts and make recommendations to the court is easily worth the several thousands of dollars it costs. However, having a skilled and knowledgeable impartial party – that is impartial as between the mother and father – who is able to initiate and lead efforts to help the parties resolve their differences is truly priceless. Given appropriate training and skills, the guardian ad litem can reinvent the role to better serve the children and the entire family. Who better to facilitate the multi-party dialogue, find the joint interests, frame the shared concerns and focus on the common ground?

Although issues affecting confidentiality would need to be discussed and clearly understood by all the parties, that should not deter nor diminish this process. The guardian ad litem's role would in many ways resemble the role of a neutral in a hybrid mediation process such as med-arb. As in med-arb, the neutral would work initially to help the parties voluntarily resolve the matter, but, if there is no agreement, the neutral then renders a recommendation or a finding. In this expanded role, and with this shift in priority and focus, the guardian ad litem can work to bring all the parties to the table, and rather than ducking behind it for cover, they can rally around it in the best interests of the children.