BILL ANALYSIS
AB 933
Page 1
Date of Hearing: April 20, 1999
ASSEMBLY COMMITTEE ON JUDICIARY
Sheila James Kuehl, Chair
AB 933 (Keeley) - As Proposed to be Amended: April 20,1999
SUBJECT : FAMILY LAW: ARBITRATION IN DOMESTIC VIOLENCE CASES
KEY ISSUES :
1)SHOULD DOMESTIC VIOLENCE VICTIMS BE REQUIRED TO GO TO
ARBITRATION TO RESOLVE DISPUTES OVER PROPERTY DIVISION IN
PROCEEDINGS FOR MARITAL DISSOLUTION OR LEGAL SEPARATION?
2)SHOULD DOMESTIC VIOLENCE VICTIMS WHO ELECT TO PARTICIPATE IN
SUCH ARBITRATION PROCEEDINGS BE PERMITTED TO HAVE ANOTHER
PERSON PRESENT TO PROVIDE EMOTIONAL AND MORAL SUPPORT?
SUMMARY : Seeks to protect victims of domestic violence from
fear, violence and manipulation in arbitration proceedings.
Specifically, this bill :
1)Limits the ability of the court, in an action for marital
dissolution or legal separation, to refer parties to
arbitration to resolve disputes over the division of property,
prohibiting such an order in cases in which there has been an
allegation of domestic violence or in which a domestic
violence protective order has been issued. The court may,
however, submit the matter to arbitration if the party making
the allegation of domestic violence, or who is protected by
the domestic violence protective order, affirmatively requests
arbitration to resolve such disputes.
2)Allows a party to have a "support person" present in the
arbitration, to provide emotional and moral support, in any
case in which a protective order has been issued by the court.
The arbitrator may exclude the support person if he or she
participates in the arbitration, acts as an advocate for the
party, or otherwise disrupts the arbitration.
EXISTING LAW :
1)Requires the court, in a proceeding for dissolution of
marriage or legal separation, to make an equal division of the
community estate between the parties. An unequal division is
AB 933
Page 2
permitted in limited, enumerated circumstances. (Family Code
sections 2550, 2600. All further statutory references are to
this code unless otherwise noted.)
2)Provides that if the parties to a dissolution or legal
separation do not agree to a voluntary division of the
community estate, and the value of the estate is less than
$50,000, the court may submit the issue of property division
to arbitration. (Section 2554.)
3)Provides that, where there has been a history of domestic
violence between the parties, or where a protective order is
in effect, custody evaluations, mediation of custody and
visitation disputes, and court-ordered counseling in cases
involving custody disputes, shall be conducted in a way to
allow the parties to meet separately and at separate times
with the evaluator, mediator, or counselor. (section 3113,
3181 and 3192.)
4)Authorizes the presence of a "support person" in a mediation
session to provide moral and emotional support for a person
who has been granted a protective order by the court against
the other party to the mediation. The mediator may exclude
the support person from the mediation if he or she
participates in the session, acts as an advocate, or otherwise
disrupts the mediation. (Section 6303.)
5)Expresses the intent of the Legislature that arbitration
hearings provide parties with a simplified and economical
procedure for obtaining prompt and equitable resolution of
disputes and that arbitration hearings provide parties maximum
opportunity to participate directly in the resolution of their
disputes. (Code of Civil Procedure section 1141.10.)
FISCAL EFFECT : Unknown
COMMENTS : The author introduced this bill at the request of
the California Alliance Against Domestic Violence to address the
serious problems victims of domestic violence may face when
forced to negotiate or otherwise settle disputes with the
perpetrator of the violence. The author notes that victims of
domestic violence may be placed in danger or in legitimate and
substantial fear of danger, or otherwise manipulated when forced
into one-on-one arbitration in an unprotected environment with
their alleged abuser. Recognizing that in cases of domestic
AB 933
Page 3
violence arbitration may not provide a level playing field, the
bill limits the ability of the court to refer parties to
arbitration to resolve disputes over the division of property in
cases in which there has been an allegation of domestic violence
or in which a domestic violence protective order has been
issued. The court is only authorized to submit the matter to
arbitration in such cases if the party making the allegation of
domestic violence, or who is protected by the domestic violence
protective order, affirmatively requests arbitration to resolve
the property dispute.
For those cases in which the party does affirmatively request
arbitration over the issue of property division, the bill
permits the victim to be accompanied by a "support person" for
the purpose of providing emotional and moral support. The
author notes that "under existing law, during any mediation a
party who is protected by a protective order relating to alleged
domestic violence is allowed to be accompanied by a support
person. This bill would expand that authorization to [apply
equally] to any arbitration orientation or session."
The introduced version of this bill, instead of prohibiting the
referral of the parties to arbitration, required that in cases
in which domestic violence was alleged or in which a protective
order had been issued, the arbitrator meet with the parties
separately and at separate times. Taking into account the
suggestion of the California Dispute Resolution Council and
others that in order for arbitration to be most effective both
parties must be in the same room at the same time, the author
has proposed to amend the bill in the manner set forth in this
analysis.
ARGUMENTS IN SUPPORT : The sponsor of the bill, the California
Alliance Against Domestic Violence, asserts that arbitration
simply does not provide a protective environment for victims of
domestic violence. The Alliance notes that this bill will go a
long way in ensuring that victims of domestic violence have the
access to the full range of dispute resolution options, while at
the same time ensuring that the use of arbitration is a knowing
and voluntary choice.
The Family Law Section of the State Bar notes that "[e]ven in
circumstances where a domestic violence victim's physical safety
is assured, the previous violence within the relationship may
impair the victim's emotional or cognitive ability to present
AB 933
Page 4
his or her positions or arguments regarding property division,
especially if he or she is forced to do so in the direct
presence of the perpetrator. Thus, the victim may be
essentially deprived of a fair hearing on the economic issues,
and may suffer financially as a result.
REGISTERED SUPPORT / OPPOSITION :
Support
California Alliance Against Domestic Violence (sponsor)
State Bar, Family Law Section
Opposition
None on file
Analysis Prepared by : Donna S. Hershkowitz / JUD. / (916)
319-2334