What To Do if the Mediator is Not Impartial?

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Hello and welcome to our show, 60 Seconds with Sergio.

I am your host, Sergio Cabanas, Attorney-at-Law here in Florida.

Thank you for joining me today.

Today’s question is: Sergio, I’m attending a mediation in a divorce of family law case, but I believe the mediator seems to be favoring my spouse or the other party.

What can I do about that?

First let’s be clear on what a mediation is.

A mediation is a meeting where we all get together, all the parties and their attorneys, if there are any, and we all meet with an independent, supposedly neutral and impartial person, known as a mediator.

Thereafter we discuss ways in which the whole case can be settled, to the extent possible.

The main objective is to settle the entire case without any further litigation.

Saving everybody the time, money, and stress of ongoing litigation.

The fact that the mediator is not coming across as being impartial and neutral, completely undermines the mediation process, because one, or maybe both parties, lose trust in the mediator.

Obviously, it’s difficult, and sometimes impossible, to settle a case where you just don’t trust the person who’s supposed to be helping you settle the case in a neutral, impartial manner.

Regardless of who’s right and who’s wrong.

Now, let’s get back to that question.

What should you do if a mediator in your case seems to be favoring the other side?

Well, let’s find out when you started to believe this was the situation.

The first scenario is that it’s before your mediation, and you believe that that person who is designated to be a mediator in your case, will not be impartial in a future mediation.

The second scenario is that you’re discovering that the mediator is not being impartial during your mediation.
Or the third scenario is that you’ve already had the mediation, and now you’re realizing that that mediator may not have been impartial in your case.

So, let’s take that first scenario.

If you believe the mediator will not be impartial, in a future mediation, this should be a relatively simple issue to resolve.

You can simply choose not to mediate your case with that mediator, and work with the other side to agree on a different mediator.

The other side should work with you because there are so many mediators out there who are very competent, who are available to help both parties.

So, it should be a fairly simple process to find someone that both parties can agree on.

If the mediator was appointed by the court, and the other side is refusing to cooperate with choosing a different mediator, you can file a motion with the court to have a different mediator designated for your case.

Most judges should readily accommodate your request because the parties should feel, again, free and comfortable, and trust the mediation process so that the case can be settled.

Ok. So now let’s look at the second scenario.

You’re feeling that the mediator is not being impartial while you’re actually still at mediation.

I suggest that you discuss the situation with your attorney, if you have one.

You can also discuss the situation with that mediator letting him or her know why you’re questioning whether they are impartial.

They understand the importance of being impartial.

And they should explain the situation to you, to your satisfaction.

So, regardless of whether you have an attorney or not, you should know that a good mediator’s job is to challenge each side on their legal position.

They start with understanding the issues and the objectives of both parties, and the arguments of both parties.

Then, a good mediator makes both sides understand the risk, cost, stress and uncertainties of going to trial, to try to get the parties to put a value on those risks.

Which could be avoided if you reach a settlement at mediation.

This may make them appear to favor the other side.

But it actually is part of the process to help the parties settle.

Depending on the circumstances, if you still feel that the mediator is not being impartial, to the point you’ve lost trust in the process, and you cannot settle, you can simply choose to end the mediation without reaching any type of settlement.

That’s called an impasse.

Keep in mind that your participation in the mediation, and settlement in mediation, is a voluntary situation.
And the discussions that take place during a mediation are confidential.

Remember, you can also inform the other side that you no longer trust the mediator, and try to arrange to mediate again with another mediator, or you can continue settlement negotiations directly with the other side, without the mediator.

Of course, if you find yourself attending a mediation where you’ve lost trust in the mediator, you should not agree to any settlement at the mediation under these circumstances especially if you feel that you’re likely getting a better result by going to trial.

Finally, let’s take a look at that third scenario.

Which is that the mediation has concluded, and you believe now that the mediator was not impartial at the time of the mediation, after the settlement was reached.

The question then becomes whether a written settlement was reached.

If a settlement was not reached, you can ask the other side if they are willing to undergo a new mediation, with a different mediator that’s agreeable to both parties.

It is possible to have more than one mediation in any case, especially if the parties agree.

If a settlement was reached, to the point there is a written and signed agreement, it’s very difficult to set aside that agreement based on your belief that the mediator was favoring the other party during that mediation.

Because you always have the option of not agreeing to anything.

Especially if you feel that the mediator was working against you.

I hope this short video provided you some guidance about the mediation process, and what you should do if you believe a mediator has not been impartial.

Thank you again for joining me today.

And as always, stay informed so you can stay strong.

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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.

Divorce & Mediation Law Firm | Cabanas Law Firm
18503 Pines Blvd, Suite 301
Pembroke Pines, FL 33029
(954) 447-2580


Sergio Cabanas, Esq. founded the Cabanas Law Firm in 2006 and provides Divorce and Family legal services, as well as Estate Planning, to ensure his clients have planned for their newly single life and are protected after their divorce. He began his career in law in 1992 as a prosecuting attorney at the Broward County State Attorney’s Office, then continued his litigation track as an insurance defense attorney defending medical professionals against medical malpractice claims and expanded into disability and life insurance claims. Sergio is a Certified Mediator registered in the Supreme Court of Florida and a frequent speaker in the community about the importance of Estate Planning to keep families out of probate court and to prepare essential instructions in the event of disability or incapacity.