BILL ANALYSIS
SB 174
Page 1
Date of Hearing: August 16, 2002
ASSEMBLY COMMITTEE ON JUDICIARY
Ellen M. Corbett, Chair
SB 174 (Kuehl) - As Amended: August 1, 2002
SENATE VOTE : Not relevant
SUBJECT : CUSTODY AND VISITATION: CONFIDENTIAL MEDIATION
KEY ISSUES :
1)SHOULD THE JUDICIAL COUNCIL SELECT AT LEAST FOUR "RECOMMENDING
COUNTIES" (COUNTIES WHICH CURRENTLY PERMIT MEDIATORS TO MAKE
RECOMMENDATIONS TO THE COURT REGARDING CUSTODY AND VISITATION)
WHO VOLUNTEER TO STOP ALLOWING MEDIATORS TO MAKE THEIR OWN
RECOMMENDATIONS TO THE COURT FOLLOWING SO-CALLED "CONFIDENTIAL
MEDIATION"?
2)WHEN, IF EVER, IS IT APPROPRIATE FOR MEDIATORS, WHOSE
TRADITIONAL ROLE IS CAREFULLY LIMITED TO HELPING PARTIES REACH
THEIR OWN AGREEMENTS AND NOT FORCING THEIR OWN VIEWS ON THE
PARTIES, TO WEAR BOTH MEDIATOR AND "DECISION-MAKER" HATS, AS
CURRENTLY OCCURS IN THE "CONFIDENTIAL" MEDIATION PROGRAMS OF
OVER 30 OF THE STATE'S 58 COUNTIES?
3)will this BILL help the legislature AND COURTS evaluate
whether CURRENT law PERMITting mediators to make custody and
visitation recommendations following confidential mediation
should be reformed?
SYNOPSIS
This bill seeks to address a long-simmering controversy in the
state's family law system regarding the current practice,
followed in over half the state's family courts, of permitting
mediators to make recommendations to the courts regarding child
custody or visitation following mediation proceedings that the
parties were noticed would be confidential. Existing law
authorizes courts to adopt local rules allowing a mediator in
family law disputes to make recommendations to the court
regarding child custody and visitation if the disputing parties
do not reach agreement in mediation.
Rather than outright prohibiting counties from continuing this
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practice, this bill is much narrower. The bill simply permits
at least four large counties (and others to the extent funds are
available), that currently permit mediators to recommend custody
and visitation plans to judges (so-called "recommending"
counties) to voluntarily participate in a program whereby they
will no longer permit their mediators to make such
recommendations (i.e., they will convert to being so-called
"non-recommending" counties.) Currently over half the counties
in California are "recommending," and a little less than half
are not.
According to the author, this legislation offers a long-needed
chance for the Legislature and the courts to begin to evaluate
whether current state law permitting family court mediators to
make such custody and visitation recommendations should be
reformed. The author believes firmly that the state should
ensure that California families are offered the opportunity to
try to resolve their custody and visitation disputes through
genuine confidential mediation before being tracked into what is
really non-confidential mediation, as so many families currently
are. Nevertheless, this bill specifically permits the courts
that participate in this program to provide for non-confidential
mediation which leads to mediator custody and visitation
recommendations so long as parties are provided an initial
chance to resolve their disputes through genuine confidential
mediation first.
SUMMARY : Offers the opportunity for the Legislature and the
courts to evaluate whether current state law permitting family
court mediators to make custody and visitation recommendations
to the court should be reformed in order to offer California
families a chance to try to resolve their custody and visitation
disputes through genuine confidential mediation before being
tracked into non-confidential mediation. Specifically, this
bill :
1)Provides for genuine confidential mediation (i.e., there can
be no recommendations made by the initial mediator to the
court regarding child custody and visitation) for custody and
visitation disputes in at least four counties who volunteer
for the program, who are selected by the Judicial Council, and
who currently permit their family law mediators to make such
recommendations to the court.
2)Requires the "notice of mediation" used in these selected
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counties to make clear that all proceedings involving the
mediator and the parties shall truly be confidential, and the
mediator will not be permitted to make a custody or visitation
recommendation to anyone other than the parties.
3)Permits the mediator to report to the court only those matters
that were agreed to in mediation, and authorizes the mediator
to report to the court whether total or partial agreement was
reached by the parties in the confidential mediation, along
with the mediator's opinion that minor's counsel should be
appointed. However the mediator may not state in these cases
the basis for the minor's counsel recommendation.
4)Allows a court participating in this program to require
parties who do not reach agreement in the initial genuinely
confidential mediation process to participate in a second
non-confidential procedure, with a different mediator who has
had no prior involvement with or knowledge of the case, and
who may thereafter make a custody or visitation recommendation
to the court.
5)Specifies that the bill will not take effect absent funding in
the budget.
6)Limits the applicability of the bill to four large counties,
defined as having more than 1,000 family law case filings per
year, who currently allow recommendations following mediation,
who volunteer to participate in the program, and who are
thereafter selected by the Judicial Council, as well as other
counties as funding permits.
EXISTING LAW :
1)Provides that when issues of child custody, visitation, or
both, are contested by the parties to a court proceeding, the
court shall set the contested issue for mediation. (Family
Code section 3170. All further references are to this code
unless otherwise noted.)
2)Provides that, where consistent with local court rules, a
mediator may submit a recommendation to the court as to the
custody of or visitation with the child. (Section 3183.)
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3)Provides that, where the parties have not reached agreement as
a result of the mediation proceedings, the mediator may
recommend to the court that a custody investigation be
conducted, or that other services be offered to assist the
parties to resolve the controversy prior to a court hearing on
the issues, and further provides that, in appropriate cases,
the mediator may recommend that restraining orders be issued,
pending determination of the controversy, to protect the
well-being of the child. ( Id .)
4)Provides that a mediator may recommend to the court that
counsel be appointed to represent the minor child, and shall
inform the court of the reasons therefor. (Section 3184.)
5)Provides that a notice of mediation shall be provided to the
disputing parties and their counsel, and to other parties as
specified, when mediation is set for a custody or visitation
dispute. (Section 3176.)
6)Provides that mediation proceedings shall be held in private
and shall be confidential. (Section 3177.)
FISCAL EFFECT : This bill is keyed non-fiscal and is contingent
upon funding appropriated in the budget.
COMMENTS : This bill seeks to address a long-standing
controversy in the state's family law system regarding the
controversial practice of a little over half the state's family
courts of permitting mediators to make child custody and
visitation recommendations to the court following mediation
proceedings where the parties were assured, via court notice,
that the proceedings would be "confidential."
Prior legislative efforts have been attempted to ban this
practice, on, among other grounds, that it risks leading parties
into the false belief that they are participating in
confidential mediation, when the process they are required to
engage in by these courts is in fact neither confidential, nor
true mediation. Instead, proponents of reform in this area have
noted, what is actually going on in those counties which permit
mediators to make custody and visitation recommendations is
non-confidential evaluation or conciliation and, in essence, a
process more akin to arbitration, for the custody and visitation
"recommendations" of the mediators predictably, and many judges
argue appropriately, almost always become the formal decisions
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of the courts since the mediators invariably spend much more
time with the parties than the judges do.
As noted above, existing law currently allows courts to adopt
local rules permitting mediators to make recommendations to the
court regarding child custody and visitation if the disputing
parties do not reach agreement in mediation. This bill simply
allows at least four large counties that currently permit
mediators to recommend custody and visitation plans to judges
(so-called "recommending" counties) to participate in a program
whereby they will no longer permit such mediator recommendations
(i.e., they will experiment with being so-called
"non-recommending" counties) in order to observe how their court
procedures and outcomes may or may not be effected. The bill
does allow subsequent non-confidential "mediation" if the first
does not lead to dispute resolution.
In support of the bill, the author notes:
When mediators are allowed to make custody
recommendations to the court, their recommendations
are based on testimony or evidence that would never
otherwise be allowed in a courtroom. Hearsay,
personal opinions, and unverified evidence may be
appropriate material in a mediation where the
mediator is attempting to get the disputing parties
to negotiate, but they are wholly inadmissible and
prejudicial to one of the parties when incorporated
into a recommendation to the court? The solution in
this bill is to require the first mediation to be
confidential, which can then be followed by
non-confidential mediation if the parties cannot
resolve their dispute.
Background : California enacted mandatory mediation in 1979 to
attempt to resolve most child custody or visitation disputes
without resorting to litigation. Although Family Code section
3177 requires all mediation proceedings to be confidential,
Family Code section 3183, enacted at the same time as section
3177, seemingly inconsistently permits courts to adopt local
rules allowing mediators to make recommendations to the court
regarding custody and visitation following so-called
"confidential" mediation.
However key to this legislation is the fact that confidential
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mediation, and mediator recommendations, are facially
inconsistent, and therefore disingenuous legal concepts. If
mediation is truly confidential, it cannot lead to a
recommendation wherein the factual basis of that recommendation
(i.e., the statements and information culled from the process)
are shared with anyone other than the parties. If it is truly
mediation, it cannot lead to a recommendation wherein the
mediator is effectively a decision-maker who imposes, through
virtual automatic court adoption of the recommendation, a
solution on the parties against their wishes.
Though not all counties have adopted local rules to allow such
mediator recommendations, as noted above, many have. Following
is a list provided by the Judicial Council showing which
counties currently permit mediators to make custody and
visitation recommendations to judges following confidential
mediation and which do not. As is evident, mediator
recommendations are allowed in well over half (33) of the
state's 58 counties. However, since Los Angeles, Orange, and
San Francisco are among the larger counties that do not allow
such recommendations (i.e., they are "non-recommending
counties"), the majority of Californians actually live in
"non-recommending" counties -- the approach being furthered in
this legislation.
--------------------------------------------------------------
|Authorize Mediators to Make |Do Not Authorize Mediators to |
|Recommendations to the Court |Make Recommendations to the |
| |Court |
|------------------------------+-------------------------------|
|Alameda |Amador |
|------------------------------+-------------------------------|
|Butte |Calaveras |
|------------------------------+-------------------------------|
|Colusa |Del Norte |
|------------------------------+-------------------------------|
|Contra Costa |Humboldt |
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|------------------------------+-------------------------------|
|El Dorado |Imperial |
|------------------------------+-------------------------------|
|Fresno |Inyo |
|------------------------------+-------------------------------|
|Glenn |Kern |
|------------------------------+-------------------------------|
|Kings |Lake |
|------------------------------+-------------------------------|
|Lassen |Los Angeles |
|------------------------------+-------------------------------|
|Madera |Marin |
|------------------------------+-------------------------------|
|Mariposa |Mendocino |
|------------------------------+-------------------------------|
|Merced |Mono |
|------------------------------+-------------------------------|
|Modoc |Napa |
|------------------------------+-------------------------------|
|Monterey |Orange |
|------------------------------+-------------------------------|
|Nevada |Placer |
|------------------------------+-------------------------------|
|Riverside |Plumas |
|------------------------------+-------------------------------|
|Sacramento |San Benito |
|------------------------------+-------------------------------|
|San Bernardino |San Francisco |
|------------------------------+-------------------------------|
|San Diego |San Luis Obispo |
|------------------------------+-------------------------------|
|San Joaquin |Santa Barbara |
|------------------------------+-------------------------------|
|San Mateo |Santa Clara |
|------------------------------+-------------------------------|
|Santa Cruz |Sutter |
|------------------------------+-------------------------------|
|Shasta |Tuolumne |
| |Yuba |
|------------------------------+-------------------------------|
|Sierra | |
|------------------------------+-------------------------------|
|Siskiyou | |
|------------------------------+-------------------------------|
|Solano | |
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|------------------------------+-------------------------------|
|Sonoma | |
| | |
|------------------------------+-------------------------------|
|Stanislaus | |
|------------------------------+-------------------------------|
|Tehama | |
|------------------------------+-------------------------------|
|Trinity | |
--------------------------------------------------------------
-------------------------------------------------------------
|Tulare | |
|-------------+-----------------------------------------------|
|Ventura | |
-------------------------------------------------------------
--------------------------------------------------------------
|Yolo | |
--------------------------------------------------------------
Information provided by the Judicial Council. Information for
Alpine not available at the time survey completed.
ARGUMENTS IN SUPPORT : As reported by the Senate Judiciary
Committee, a letter from a supporter of prior legislation in
this area, Dr. Laura Nader of the UC Berkeley School of
Anthropology, stated 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."
Dr. Nader has been studying the mediation movement since
alternative dispute resolution (ADR) was encouraged by the work
and advocacy of U.S. 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."
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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 studies make recommendations to the court as
to its disposition.
In an October 2001 article published in the Family Court Review ,
Hugh McIsaac, the former director of Los Angeles County Family
Court Services (now the Executive Director of the Oregon Family
Institute), set forth the arguments in favor of prohibiting
mediator recommendations in family court, something this bill
does not do, which may be summarized as follows:
(a) Recommendations defeat mediation's goal : The role of the
mediator is to facilitate communication between the parties
and to help them arrive at a solution in the best interests
of the child. When the mediator has the power to recommend,
the mediation becomes an adversarial process, and the parties
do not learn the skills necessary to resolving their
disputes.
(b) Recommendations compromise confidentiality . Parties who
trust in the confidentiality of the mediation process are
encouraged to speak honestly, whereas those who know they are
being "evaluated" will minimize their problems and maximize
their criticism of the other parent.
(c) Recommendations distract the mediator . Instead of
thinking about how to facilitate discussion and identify
issues, the recommending mediator must be evaluating the
parents and reaching conclusions on very limited and
potentially biased information.
(d) Recommendations coerce the parties . The McIsaac article
states that, in high-volume courts, mediators are "under the
gun" to process cases, and often short-circuit the mediation
process by revealing their recommendations as a way to get
the parties to agree.
(e) Separating mediation from evaluation encourages the
parties to work harder in mediation . According to McIsaac,
studies show that families who resolve their issues in
non-recommending mediation move through the court process
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more rapidly and are 50 percent less likely to relitigate.
Further, the settlement rate for low-income litigants in
non-recommending counties "is as high as 90 percent."
(f) Using mediators as evaluators is inefficient .
Mediations take longer when mediators have to collect
information and take extensive notes to justify their
eventual recommendations to the court if the mediation fails.
Further, mediators who must spend their time preparing
reports for court or testifying at trial have less time to
mediate. McIsaac says mediators in non-recommending counties
can handle a substantially higher caseload than those in
recommending counties.
THE CONCERNS THAT HAVE HISTORICALLY BEEN EXPRESSED BY THOSE WHO
HAVE SUPPORTED MEDIATOR CUSTODY RECOMMENDATIONS : In response to
earlier legislation in this area by the author which called for
a ban on mediator recommendations in child custody and
visitation matters, judges and family court staff professionals
of the Ventura County Superior Court sent a letter that stated
that after many years of being a non-recommending county,
Ventura changed its rules and began permitting mediator
recommendations in 1998. According to the letter, "the success
[of allowing mediator recommendations] was clear and immediate."
However it is important to reiterate that nothing in the current
bill before the Committee requires a county such as Ventura to
change its current approach to the recommendation question. If
any county wishes to maintain its current approach it may do so.
Nevertheless, this and other letters from courts and mediators
in recommending counties have historically made the following
arguments in favor of the recommendation approach:
(a) Recommendations lead to resolutions . The mediator's expert
recommendations often lead to full or partial settlements,
reduce trial court time, and provide a satisfactory outcome
for the parties. Mediators tend to be highly trained family
law and mental health professionals whose recommendations are
regularly adopted by the parties' attorneys without a hearing.
Bills which would ban mediator recommendations in this area
would cause more cases to be unnecessarily subjected to highly
contested trials and hearings.
(b) Recommendations help lower-income families in court . In
Ventura County, 70 percent of the litigants in custody
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disputes reportedly cannot afford counsel. These pro per
litigants lack the skills to present their cases effectively
in court, and lack the resources to pay for evaluations to
support their positions. Mediator recommendations help the
judges to understand the parties' perspectives and to fashion
appropriate solutions.
(c) Recommendations give children a voice, and protect them
in high-conflict cases . Unlike child dependency cases where
the child has an attorney, in family law the child is without
"unbiased representation." Mediators interview all children
over age six, and make recommendations that directly address
their needs and safety concerns. These recommendations are
often the court's primary source of objective information,
and help the court monitor the children's safety while
resolving adult issues.
(d) Recommendations convey prompt, crucial information to
judges . If mediation fails to resolve the issues in a
non-recommending county, it can take several months for a
full scale investigation to be ordered, conducted, and
reduced to a report. In the meantime, crucial information
(such as a parent's conviction for domestic violence) may go
unnoted by the court. Mediator recommendations convey such
information promptly, so a court can make fully informed
decisions in a timely fashion.
(e) Recommendations serve children's interests by resolving
matters quickly and non-invasively . Recommending mediators
state that they take care to become no more intrusive in the
lives of the parties than absolutely necessary to establish
"child-centered" custody and visitation plans. Full scale
investigations, on the other hand, are "highly invasive
procedures." The mediators stress that timely resolution of
these issues decreases the level of uncertainty and emotional
turmoil known to be damaging to children who are caught in
the middle of parental conflict, and that there is no
evidence to support the notion that increased investigations
will better serve the needs of children.
(f) Recommendations make better use of scarce resources .
Dispensing with mediator recommendations will require courts
to order full investigations in order to have some objective
information on which to base a custody decision. Since
"recommending" mediations normally last a few hours, while
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full investigations require "from 22 to 36 hours of
professional staff time," prohibiting mediator
recommendations will result in a vastly increased burden on
the scarce resources of county court systems.
Issue: Should Not The Word "Mediation" Be Replaced Soon In This
Process By A More Appropriate Term Such As "Conciliation"?
Regardless of where one comes down on the contentious issue of
"recommending" vs. "non-recommending" approaches, it appears
clear, as has been well articulated by the California Dispute
Resolution Council (CDRC) as well as Senator Byron Sher on this
issue, that the "recommending mediation" process does not
constitute genuine mediation. In fact, CDRC has suggested
previously that, if the improperly called "non-confidential
mediation" practice is allowed to continue at all in the future
by the Legislature, its practitioners might be more
appropriately referred to as "conciliators," or some other term,
for they are definitely not "mediators" as this term, and
function, has evolved in the ADR movement. The Committee may
therefore wish to discuss this issue with the author .
Survey of participants in recommending and non-recommending
courts : California Family Court Services and the Judicial
Council have conducted surveys of participants in the family
court system on a broad range of topics, and have compared
responses of those in both recommending and non-recommending
courts. The results appear to provide helpful material for both
sides in the debate that has raged between proponents and
opponents of the recommending approach to family court
mediation.
Opponents of this bill point out that more than 7 out of every
10 surveyed in either system report general satisfaction with
mediation, with only slightly more favorable responses in
non-recommending courts: 74% versus 78% for recommending and
non-recommending courts according to a 1991 survey. They
further contend that this bill is a solution in search of a
problem.
The author, however, in testimony before the Senate Judiciary
Committee, pointed out that participants in recommending
mediation do not have experience with confidential mediation,
and are not in a position to compare the two. Furthermore, the
author notes that family court services are so chronically
under-funded that participants may simply be expressing
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satisfaction that they received any services at all, regardless
of what type and regardless of their confidentiality.
With this in mind, argues the author, the proportion of those
expressing dissatisfaction with the two systems is the more
relevant figure. When asked specific questions about the
mediation process, the author states that participants were
critical of recommending courts nearly twice as often as
non-recommending ones. For example, 19% felt "rushed by the
mediator" in recommending courts as opposed to only 12% in
non-recommending ones. Likewise, 18% felt intimidated in
recommending courts, as opposed to 12% in non-recommending ones.
Positions on the Latest Version of This Legislation : None of
the letters of support or opposition address the most recent
amendments to the bill, which is significant because the bill
before the Committee represents a very substantial compromise
between the two systems. Indeed, the bill is now strictly
limited only to those recommending courts that are willing to
voluntarily switch over to confidential mediation.
Presumably, since no court that wishes to continue to receive
recommendations from its mediators will be forced to adopt
confidential mediation under the bill, it is likely opposition
to the bill has been removed by the broad recent amendments.
According to the author's office, the recent amendments were
taken at the request of both the Judicial Council and the
Executive Committee of the Family Law Section of the State Bar
(FlexCom).
The current version of the bill conforms to the recommendations
of FlexCom, who now support the bill. For example, FlexCom
recommended an amendment to provide that, "when confidential
mediation fails, the parties will be referred immediately to a
custody assessment by a qualified counselor with the authority
to make recommendations to the court."
Author's Amendment #1 : The current version of the bill permits
non-confidential mediation to follow confidential mediation as
long as the second mediator has no prior involvement with the
case. Presumably, courts that allow recommendations take steps
to inform participants that what they say may be incorporated
into a recommendation to the court. Under the hybrid model of
the current bill, however, there is no provision requiring the
participants to be expressly informed that they are
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transitioning from confidential to non-confidential mediation.
The author has thus agreed to the following author's amendment:
On page 3, line 40, after the period, add the sentence,
"The court, however, shall inform the parties that the
mediator will make a recommendation to the court regarding
custody or visitation in the event that the parties cannot
reach agreement on these issues."
Author's Amendment #2 : Under the "confidential first" model
encouraged by the current bill, only those parties with
intractable issues will be referred to the second round of
non-confidential mediation, which suggests the need for the
second mediator to be prepared for highly contentious or complex
issues. For this reason, the author has agreed to an author's
amendment requiring the mediator who will be making a custody
recommendation to the court to meet the existing qualification
of a custody evaluator established by the Judicial Council in
Rules 1257.4 (minimum qualifications and experience) and 1257.7
(domestic violence training) of the California Rules of Court.
Neither rule calls for a specific type of custody evaluation,
and Rule 1257.4 recognizes both partial and full evaluations.
The author's amendment will therefore read as follows:
On page 4, line 1, insert the sentence, "Any mediator
making a recommendation regarding custody or visitation to
the court shall meet the qualification of a custody
evaluator as set forth in California Rule of Court 1257.4
and 1257.7."
Thus, subparagraph (4)of Section 3188 will read, following the
author's amendments noted above, will read as follows:
(4) In the event that the parties have not reached
agreement as a result of the initial mediation, nothing in
this section shall prevent the court from requiring
subsequent mediation that may result in a recommendation as
to custody or visitation with the child provided that the
subsequent mediation be conducted by a different mediator
with no prior involvement with the case or knowledge of any
communications, as defined in Section 1040 of the Evidence
Code, of the initial mediation. The court, however, shall
inform the parties that the mediator will make a
recommendation to the court regarding custody or visitation
in the event that the parties cannot reach agreement on
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these issues. Any mediator making a recommendation
regarding custody or visitation to the court shall meet the
qualification of a custody evaluator as set forth in
California Rule of Court 1257.4 and 1257.7.
Prior Related Legislation : SB 2124 (Figueroa, 2000) would have
prohibited mediators in child custody or visitation disputes
from making recommendations to the court if the parties failed
to resolve the dispute. Died in the Assembly.
Recent Substantial Amendments : Because this legislation was so
recently amended, organizations did not have time to communicate
their positions to the Committee. The following support listed
was communicated to the Senate Judiciary Committee to an earlier
version of related legislation by the author that called for a
prohibition on the use of mediator recommendations in family
courts, so it appears reasonable to assume that these groups
will support this bill, and this list may help the Committee get
a sense of those who support the goals of the proposal. Given
that this legislation no longer requires any county to change
its recommendation policy regarding family court mediators, it
is also reasonable for the Committee to assume that the
opposition that was communicated to the earlier mandatory
version of the author's legislation does not apply to this bill.
REGISTERED SUPPORT / OPPOSITION :
Support (As communicated on SB 1406 of 2002 (Kuehl):
Orange County Bar Association
California Dispute Resolution Council
California Advocates for Social Change
California Commission on the Status of Women
California Women's Law Center
Federation of Business and Professional Women
Feminist Majority
FlexCom
Los Angeles Center for Law and Justice
National Council of Jewish Women/Los Angeles
Women for:
Opposition
None on file
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Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334