BILL ANALYSIS
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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
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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
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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.
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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
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