BILL ANALYSIS                                                                                                                                                                                                    



                                                                       


           ------------------------------------------------------------ 
          |SENATE RULES COMMITTEE            |                  SB 2124|
          |Office of Senate Floor Analyses   |                         |
          |1020 N Street, Suite 524          |                         |
          |(916) 445-6614         Fax: (916) |                         |
          |327-4478                          |                         |
           ------------------------------------------------------------ 
           
                                        
                                 THIRD READING
                                        

          Bill No:  SB 2124
          Author:   Figueroa (D)
          Amended:  As introduced
          Vote:     21

            
           SENATE JUDICIARY COMMITTEE  :  5-3, 4/4/00
          AYES:  Burton, Escutia, O'Connell, Sher, Schiff
          NOES:  Haynes, Morrow, Wright
          NOT VOTING:  Peace
           

           SUBJECT  :    Child custody:  mediation

           SOURCE  :     Family Law Taskforce

           
           DIGEST  :    This bill would prohibit a mediator from  
          submitting any recommendations to the court as to custody  
          or visitation, if the parties do not reach an agreement  
          during the mediation proceedings.

           ANALYSIS  :    Existing law requires the court, in a  
          contested child custody or visitation proceeding, to set  
          the contested issues for mediation and thereafter, the  
          mediator may submit a recommendation to the court as to  
          custody of or visitation with the child.

          This bill would provide that if the parties do not reach an  
          agreement during the mediation, the mediator would be  
          prohibited from submitting a recommendation to the court as  
          to custody or visitation.

           Background
                                                           CONTINUED





                                                              SB 2124
                                                                Page  
          2

           
          This bill is sponsored by the "Family Law Taskforce," an ad  
          hoc group of persons representing various agencies and  
          institutions who meet regularly and make recommendations  
          regarding changes to the Family Code.  The agencies  
          represented on the taskforce include Coalition for Family  
          Equity; Committee for Mother and Child, Inc.; Protective  
          Parents; Attorney General's Office of Victims' Services;  
          California Committee on the Status of Women; Judicial  
          Council of California; ACLU of Southern California; Our  
          Children,  Our Future Charitable Foundation; California  
          Women's Law Center; Andre Sobel River of Life Foundation;  
          ACES; California National Organization for Women; and an  
          assortment of individuals.  The taskforce is not an  
          official government agency, has no specific charge, and has  
          no structure.

          A letter from a supporter of the bill, Dr. Laura Nader of  
          the UC Berkeley School of Anthropology, states that her  
          studies of the mediation movement reveal that "mediation  
          abridges freedom, especially when mandatory, because it is  
          often outside the law, eliminates choice of procedure,  
          removes equal protection before an adversary law, and is  
          generally hidden from view.  There is no one regulating the  
          education and practice of mediation, and there are too many  
          mind games operating outside the purview of anyone - not in  
          a democratic practice."   She has been studying the  
          mediation movement since Alternative Dispute Resolution was  
          made respectable by the work and advocacy of US Supreme  
          Court Chief Justice Warren Burger.  She stressed that: 

            "[J]udges rely too heavily on mediator recommendations  
            because it is easier, but that does not mean it is good  
            for parties concerned.  The plain truth is that we have  
            not enough data on how mediators operate because of  
            confidentiality clauses, however it is clear that they do  
            not contextualize beyond the parents and children.   
            Custody is too important to be left to such a narrow  
            specialty and one that is practiced in an unseen manner."

          According to the proponents of the bill, the actual problem  
          may lie in the fact that some cases should not even be sent  
          to mediation at all, but directly to a child custody  
          evaluator who is trained to make in-depth studies of a  







                                                               SB 2124
                                                                Page  
          3

          particular case and on the basis of those studies make  
          recommendations to the court as to its disposition.   
          Proponents state that, for example, domestic violence and  
          sexual abuse cases would seem to be the kind of cases that  
          should be exempt from mediation, and should receive the  
          full study that a child custody mediator can give rather  
          than a simplistic treatment from an untrained mediator.   
          Further, sending these cases to mediation first, according  
          to proponents, wastes time, since the likelihood of  
          reaching a compromise agreement between the parties is  
          practically nil.  In the end, it is the child whose custody  
          is in dispute, who suffers.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No    
          Local:  No

           SUPPORT  :   (Verified  5/10/00)

          Family Law Taskforce (source)
          Association for Children of Enforcement of Support
          Family Law Section of the State Bar of California
          National Organization for Women
          Hugh McIsaac, Executive Director of Oregon Family Institute  
            (former director of Los Angeles County Family Court  
            Services)
          Coalition for Family Equity
          Professor Carol Bruch, UC Davis School of Law
          YWCA of San Diego County
          Our Children, Our Future, Charitable Foundation
          California Dispute Resolution Council

           ARGUMENTS IN SUPPORT  :    When parents who come to mandatory  
          mediation over child custody or visitation fail to come to  
          an agreement, the mediator may or may not make a  
          recommendation to the court about how to resolve the case.   
          The author states that when a mediator does make a  
          recommendation, the judge usually relies on the mediator's  
          recommendation to make a final judgment, thus effectively  
          making the mediator the final adjudicator of the child  
          custody or visitation dispute.

          The real problem, the author points out, is that more often  
          than not, the mediator has seen the parties and the child  
          only once or twice before making such a recommendation.   







                                                               SB 2124
                                                                Page  
          4

          More importantly, mediators appointed by a court are not  
          necessarily as well trained as child custody evaluators and  
          they do not engage in a lengthy, in-depth study of the  
          circumstances surrounding the custody/visitation dispute  
          and the parties involved.  Thus, the recommendation made by  
          a mediator, according to the author and the proponents,  
          could be based on a very sketchy set of facts, a very short  
          interview or meeting with the parties and the child, and  
          could be a very biased recommendation based on these two  
          factors.

          This bill attempts to resolve the problem by prohibiting a  
          mediator from making a recommendation to the court as to  
          the child custody or visitation dispute.  The practical  
          effect of this bill is to increase the frequency and costs  
          of child custody evaluation.  These are discussed in the  
          comments below.

          Supporters of the bill submit that the failure of mediation  
          in most cases can be attributed to the lack of  
          confidentiality of the information revealed during  
          mediation.  Parents involved in the dispute would be more  
          candid and say more during the mediation (and this could  
          help them reconcile differences with regards to this issue)  
          if they knew and believed that whatever they say in the  
          mediation would be kept strictly confidential.  But,  
          although these proceedings are supposed to be kept  
          confidential, confidentiality is not guaranteed.


          RJG:sl  5/10/00   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

                                ****  END  ****