BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Adam B. Schiff, Chairman
1999-2000 Regular Session
SB 2124 S
Senator Figueroa B
As Introduced
Hearing Date: April 4, 2000 2
Family Code 1
GMO:cjt 2
4
SUBJECT
Child Custody: Mediation
DESCRIPTION
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.
BACKGROUND
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.
CHANGES TO EXISTING LAW
(more)
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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.
COMMENT
1. Need for bill
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. 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
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are discussed in the comments below.
2. The problem with mediation today
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 (Family Code Section
3177), confidentiality is not guaranteed.
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 particular case and on the basis of those
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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.
3. Opponents' concerns: Judicial Council and counties
California courts are split over whether or not a
mediator may make a recommendation to the court as to
resolution of a child custody or visitation dispute. By
local rules, 39 counties allow the mediator to make a
recommendation to the court, and 18 counties do not.
(Family Code Section 3183.)
Opposition to the change this bill would make, i.e.,
removing the discretion of the mediator to submit a
recommendation to the judge who will ultimately decide
the custody/visitation issue, is based on a disagreement
with the general procedural and fiscal implications of
the proposal. They are mostly concerned with the fact
that without the budget appropriations, there will not
be alternatives in place of mediation. The concern is
especially fueled by the fact that mediation is probably
the only way most poor families are able to approach the
issue of child custody and visitation, and mediation is
where they could try and reach a compromised settlement
of the dispute. If child custody evaluation would be
the automatic response to a report from the mediator
that no agreement was reached, these families would be
hard-pressed to pay for the costs of the evaluation.
Therefore, unless the courts are provided funds to
create a pool of child custody evaluators, they may not,
indeed they do not, support this measure.
These concerns are legitimate. In fact, the paucity of
well-trained child custody evaluators was pointed out in
last year's SB 433 (Ch. 433, of Stats of 1999), which
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requires the Judicial Council to adopt rules and
regulations for certifying child custody mediators and
ensuring that all would be trained and have the
certification by 2005. Undoubtedly, the fees for child
custody evaluators will increase as they complete their
formal training and certification. If the courts do not
have an affordable alternative for poor families,
mediation will become the poor family's child custody
evaluation.
A possible solution to this would be to require parties
who can afford it (and the court would have the
information before it to make this decision) to pay for
the child custody evaluation that would be required,
whereas those families who are less able to pay for the
evaluation should pay on a sliding scale. In the long
run, it would cost the families less in terms of dollars
and time wasted in reaching judgment in the case than
the cost of a lengthy court contest of the issue.
4. Recommending vs. non-recommending courts
Advocates on both sides of this issue (whether mediators
should be allowed to make recommendations on how to
resolve the case) claim that their courts are more
efficient than the other. The recommending courts and
the Judicial Council have raised objections on the
grounds that additional staff would have to be employed
to perform evaluations if the mediators could not make
recommendations. The non-recommending court advocates
state that contrary to their opponents' claims, the
filing to staff ratio is higher in non-recommending
counties (Los Angeles County and Orange County) than in
recommending counties (Alameda and Ventura).
Support: Association for Children of Enforcement of
Support; 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; Family
Law Section of the
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State Bar of California
Opposition: None Known
HISTORY
Source: Author
Related Pending Legislation: None
Prior Legislation: None Known
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