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Plaintiff’s second general complaint is an allegation of improper conduct by the court-
appointed mediator, as well as the Small Claims Judge. Schmitt suggests that the mediator was
partial to Force and had improper communications with Judge French prior to the hearing.
Moreover, Schmitt alleges that the mediator passed notes during the hearing to Force while
sitting next to her during the hearing. The failure of the mediation, for whatever reason, would
not have been properly before the Court at trial, and is not a proper subject for review. V.R.E.
408 (offers of compromise not admissible); 12 V.S.A.§ 5720 (confidentiality limits of mediation
process). Further, a judicial officer is presumed to be unbiased, and disqualification would have
required a demonstration of bias by affirmative facts, accompanied by a proper motion for
disqualification under V.R.C.P.40(e). Ball v. Melsur Corp., 161 Vt. 35 (1993). Appellant’s
allegations of improper judicial communication with the mediator prior to the hearing, having
not been preserved by raising them at the time of trial, renders the claim unreviewable on appeal.
See In re Wal-Mart Stores, Inc., 167 Vt. 75, 87 (1997) (facts outside record cannot be considered
on appeal).