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  








                                                                  SB 174
                                                                  Page  2

          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  








                                                                  SB 174
                                                                  Page  3

            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.)









                                                                  SB 174
                                                                  Page  4

          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  








                                                                  SB 174
                                                                  Page  5

          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  








                                                                  SB 174
                                                                 Page  6

          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                       |








                                                                  SB 174
                                                                  Page  7

          |------------------------------+-------------------------------|
          |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                        |                               |








                                                                  SB 174
                                                                  Page  8

          |------------------------------+-------------------------------|
          |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."








                                                                  SB 174
                                                                  Page  9


          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  








                                                                  SB 174
                                                                  Page  10

             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  








                                                                  SB 174
                                                                  Page  11

             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  








                                                                  SB 174
                                                                  Page  12

             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  








                                                                  SB 174
                                                                  Page  13

          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  








                                                                  SB 174
                                                                  Page  14

          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  








                                                                 SB 174
                                                                  Page  15

               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 








                                                                  SB 174
                                                                  Page  16


           Analysis Prepared by  :    Drew Liebert / JUD. / (916) 319-2334