Flawed Mediation Report

After gathering all of the documents including medical reports showing that my wife failed to take appropriate and timely action on several occasions when our child became very ill, FCS refused to accept any of my documents and threatened a 730 hearing unless we agreed on custody. "You'll either agree or I'll send this to a 730." "But we cannot afford a 730." "Then you'd better agree." But she accepted emails from my wife that to this day I don't have copies of. My attorney didn't think it wise to challenege the beloved mediators in their own courthouse. But what recourse do I have if the mediator refused to do her job and has placed my daughter at risk of injury or death? One document is a paramedic run sheet that details how our child became ill 30 hours prior and upon arrival was found comatose.

A mediator can only do so much ( ie: mediate)- therefore- if that doesn't work-and one party doesn't agree( thus- if you don't agree- it will be scheduled for further proceedings- ie 730 evaluation) your options are to either accept the recommendation or have it scheduled for further proceedings . Not a threat; not flawed- procedure.  Further proceedings do get costly- 

My issue is more her threat to send it to a 730 unless we agreed. It was the tone of her voice in the threat. She gave no other choice. She accepted written evidence from the other party but refused mine. It just seems wrong.

In a sense your only viable option is to force a 730 hearing or capitulate--you probably have more proceedural rights via a 730

If you do not agree, definitely move forward.  Do not give in if you know it's not right.

It seems to me the mediator acted inappropriately.  Is it possible to have THAT mediator replaced?  From what I read, the "mediator" should not have any influence to the court.  Here is an excerpt (of what I read):

1121.  Neither a mediator nor anyone else may submit to a court or
other adjudicative body, and a court or other adjudicative body may
not consider, any report, assessment, evaluation, recommendation, or
finding of any kind by the mediator concerning a mediation conducted
by the mediator, other than a report that is mandated by court rule
or other law and that states only whether an agreement was reached,
unless all parties to the mediation expressly agree otherwise in
writing, or orally in accordance with Section 1118.

http://law.justia.com/california/codes/2009/evid/1115-1128.html

I believe that authority here derives from California Family Code section 3160 et seq.

This is the real world that we live in. My attorney told me that the last thing we wanted to do was to tick off a judge that likes "his" mediators because they make "his" job easier. I was coerced into an "agreement" under a clear tjhreat of an expensive 730. The evidence I sought to present went directly to the credibility, responsibility and rational of the mother who failed to seek medical attention for our gravely ill daughter for 30 hours. The paramedics were only called when our daughter collapsed into a coma. I am sickened by the thought of surrendering 50% legal custody to someone that thought that finishing the family outing at Magic Mountain was more important. There is another hearing on October 28th but nothing will change for the better.

All pretrial procedures ( mediation, conferences, etc)  makes a judges job easier; If the matter is resolved  they have one less court to decide which leaves them more time for the cases that don't resolve.  It doesn't involve "thugs" or anything inappropriate;  You knew you had the right to not agree and have a hearing;  it sounds like your immediate concern for the expenses involved in doing so prevailed over any concern you had for the custody situation.  To blame the mediator- makes no sense.

A rather one-sided response. When a party has no money and is threatened with a 730 what choice remains? But you haven't explained why crucial evidence from a third-party governmental agency was not allowed. I DO blame the mediator because she is the one that threatened. "Come to an agreement or I send this to a 730." She had an angry tone of voice and clearly was interested in reaching an agreement, whether forced or otherwise.

Having gone through something similar I think it makes perfect sense that if one party has evidence that goes directly to the matter, specifically the failure of a parent to provide life saving medical treatment, that in itself should compell the mediator to do her job. The court looks to the mediator to sift through the minutia and threatening a %5k-$10k 730 exam on a party that has no money or that party agrees to a coerced agreement goes against the very purpose of the mediator. I can see if the evidence were from the party himself, but from a third party with no dog in the hunt?

"Evidence" from a third party is considered hearsay  and not admissable. That one party thinks such a document should be evaluated by a mediator with a decision based upon that document according to what they think that document means- isn't how it works.

I realize that you are a lawyer and are speaking in general terms. As you know a formal report generated by the county fire paramedics in response to a 911 call is not hearsay. It is an official document generated by a government agency and available via subpoena or a simple HIPAA request. Likewise, an ER report of the same incident adding to the paramedic run sheet information is also not hearsay. In these documents it is recorded that one of the parents failed to obtain timely medical aid for a gravely ill patient and that a 24 hour delay almost cost the child's life. The child suffered brain damage as a direct result of the failure to act.

A written protocol was in effect that dictated the proper response based on medical conditions and it was not followed. The child was comatose upon arrival of the paramedics who documented the parents' statements contemporaneous to the actual 911 call. In that report it states that the child became ill more than 24 hours prior. Clearly the parent failed to take immediate action. That same parent lied during mediation and stated that the child only became ill that morning. Direct testimony would have impeached the parent had it gone to a hearing. This is *exactly* what FCSW needs to read and evaluate whether it is relevant. My description shouyld make it absolutely clear that it was relevent and hearsay rules don't apply in mediation.

Family court is also much more lax on hearsay. As you know there are numerous exceptions to hearsay that include state of mind, or prior statements of a witness. If a document impeaches testimony it may be admissible even under the strictest interpretations. Add prior inconsistent statements as well as excited utterances made to the paramedics. A blanket statement that third-party evidence is inadmissible isn't quite accurate.

For a FCSW mediator to not even read the government agency report and evaluate it may just rise to malpractice of a licensed psychologist. She doesn't have to accept it but refusing to read it and demanding an agreement or a threatened 730 is an issue, wouldn't you agree? 

Possibly the fact that you came with all these documents convinced the mediator that the matter was sufficiently complicated as to require a 730 expert to evaluate all the details if the parties could not come to an agreement within the limited timeframe provided for "free" mediation. Sounds like a reasonable conclusion.

No- absolutely not; that is what courts with judges are for;  your issue ( that a child's was put at risk and suffered injury as a result of the mother's actions or lack of action) is not for a mediator to decide based on some documents;  impeachment doesn't come in as substantive evidence and only goes to credibility of witness.  "Official" documents don't make them any less hearsay.  But good luck with whatever course of action you take;  my point only being that aiming your discontent at a mediator doesn't make sense when you had other options as every other person in a custody dispute has.