Child custody recommendation orders vs Mediator’s recommendation orders, Family Law Dilemma, Riverside Superior Court.

As even the most unskilled layperson is aware of anyone who enters a court of law, has to present evidence to support their position.

The assumption is that a court usually has to rely on evidence. In criminal law the evidence standard is burden of proof, and in civil law matters, which includes family law, the evidence standard is the preponderance of the evidence standard. There are rules governed by the California evidence code that define how a court is supposed to consider evidence.

In the case of family law, the Riverside Superior Court, has moved away from the old mediator’s recommendation proposed orders and now embraces child custody recommendation orders, which again presents a dilemma to the court.  Parties are sent to a child custody recommending counselor to see if they can come up with an agreement to any child custody matter pursuant to mediation.

California family code section 3183 defines how a  court views child custody recommending counselors. :

California Family Code Section 3183

(a) Except as provided in Section 3188, the mediator may, 
consistent with local court rules, submit a recommendation to
the court as to the custody of or visitation with the child, if 
the mediator has first provided  the parties and their 
attorneys, including counsel for any minor children, with the 
recommendations in writing in advance of the hearing. The court
shall make an inquiry at the hearing as to whether the parties
and their attorneys have received the recommendations in
writing. If the mediator is authorized to submit a
recommendation to the court pursuant to this subdivision, the
mediation and recommendation process shall be referred to as 
"child custody recommending counseling" and the mediator shall 
be referred to as a "child custody recommending counselor." 
Mediators who make those recommendations are considered 
mediators for purposes of Chapter 11 (commencing with Section 
3160), and shall be subject to all requirements for mediators
for all purposes under this code and the California Rules of 
Court. On and after January 1, 2012, all court communications
and information regarding the child custody recommending
counseling process shall reflect the change in the name of the
process and the name of the providers.
   (b) If the parties have not reached agreement as a result of
the mediation proceedings, the mediator may recommend to the 
court that an investigation be conducted pursuant to Chapter 6
(commencing with Section 3110)or that other services be offered 
to assist the parties to effect a resolution of the controversy
before a hearing on the issues.
   (c) 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 involved in
the controversy.

Basically it boils down the fact that child custody recommended  counselors are still  viewed as mediators under California  law which presents an interesting dilemma to the court as the CA evidence code,  prohibits any documentation that originates from mediation as being used as evidence in a civil proceeding which also includes family law.
The CA evidence code that relates to mediation specifically states:

CA EVIDENCE CODE SECTION 1115-1128

1115.  For purposes of this chapter:
   (a) "Mediation" means a process in which a neutral person or
persons facilitate communication between the disputants to
assist them in reaching a mutually acceptable agreement.
   (b) "Mediator" means a neutral person who conducts a 
mediation.
"Mediator" includes any person designated by a mediator either
to assist in the mediation or to communicate with the 
participants in preparation for a mediation.
   (c) "Mediation consultation" means a communication between a
person and a mediator for the purpose of initiating,considering, or
reconvening a mediation or retaining the mediator.

1116.  (a) Nothing in this chapter expands or limits a court's
authority to order participation in a dispute resolution
proceeding. Nothing in this chapter authorizes or affects the 
enforceability of a contract clause in which parties agree to
the use of mediation.
   (b) Nothing in this chapter makes admissible evidence that is
inadmissible under Section 1152 or any other statute.

1117.  (a) Except as provided in subdivision (b), this chapter
applies to a mediation as defined in Section 1115.
   (b) This chapter does not apply to either of the following:
   (1) A proceeding under Part 1 (commencing with Section 1800)
of Division 5 of the Family Code or Chapter 11 (commencing with
Section 3160) of Part 2 of Division 8 of the Family Code.
   (2) A settlement conference pursuant to Rule 3.1380 of the
California Rules of Court.

1118.  An oral agreement "in accordance with Section 1118" means an
oral agreement that satisfies all of the following conditions:
   (a) The oral agreement is recorded by a court reporter or 
reliable means of audio recording.
   (b) The terms of the oral agreement are recited on the record in
the presence of the parties and the mediator, and the parties 
express on the record that they agree to the terms recited.
   (c) The parties to the oral agreement expressly state on the
record that the agreement is enforceable or binding, or words 
to that effect.
   (d) The recording is reduced to writing and the writing is 
signed by the parties within 72 hours after it is recorded.

1119.  Except as otherwise provided in this chapter:
   (a) No evidence of anything said or any admission made for
the purpose of, in the course of, or pursuant to, a mediation or a
mediation consultation is admissible or subject to discovery, 
and disclosure of the evidence shall not be compelled, in any
arbitration, administrative adjudication, civil action, or other
noncriminal proceeding in which, pursuant to law, testimony can
be compelled to be given.
   (b) No writing, as defined in Section 250, that is prepared 
for the purpose of, in the course of, or pursuant to, a 
mediation or a mediation consultation, is admissible or subject
to discovery, and disclosure of the writing shall not be 
compelled, in any arbitration, administrative adjudication,
civil action, or other noncriminal proceeding in which, pursuant to law, 
testimony can be compelled to be given.
   (c) All communications, negotiations, or settlement 
discussions by and between participants in the course of a
mediation or a mediation consultation shall remain confidential.

1120.  (a) Evidence otherwise admissible or subject to discovery
outside of a mediation or a mediation consultation shall not be
or become inadmissible or protected from disclosure solely by 
reason of its introduction or use in a mediation or a mediation
 consultation.
   (b) This chapter does not limit any of the following:
   (1) The admissibility of an agreement to mediate a dispute.
   (2) The effect of an agreement not to take a default or an
agreement to extend the time within which to act or refrain from
acting in a pending civil action.
   (3) Disclosure of the mere fact that a mediator has served,
is serving, will serve, or was contacted about serving as a 
mediator in a dispute.

1121.  Neither a mediator nor anyone else may submit to a court 
or other adjudicative body, and a court or other adjudicative
body may not consider, any report, assessment, evaluation,
recommendation, or finding of any kind by the mediator 
concerning a mediation conducted by the mediator, other than a 
report that is mandated by court rule or other law and that
states only whether an agreement was reached, unless all parties 
to the mediation expressly agree otherwise in writing, or 
orally in accordance with Section 1118.

1122.  (a) A communication or a writing, as defined in Section
250, that is made or prepared for the purpose of, or in the
course of, or pursuant to, a mediation or a mediation
consultation, is not made inadmissible, or protected from
disclosure, by provisions of this chapter if either of the 
following conditions is satisfied:
   (1) All persons who conduct or otherwise participate in the
mediation expressly agree in writing, or orally in accordance
with section 1118, to disclosure of the communication, document, or
writing.
   (2) The communication, document, or writing was prepared by
or on behalf of fewer than all the mediation participants, 
those participants expressly agree in writing, or orally in 
accordance with Section 1118, to its disclosure, and the 
communication, document, or writing does not disclose anything 
said or done or any admission made in the course of the 
mediation.
   (b) For purposes of subdivision (a), if the neutral person
who conducts a mediation expressly agrees to disclosure, that 
agreement also binds any other person described in subdivision
(b) of Section 1115.

1123.  A written settlement agreement prepared in the course of, or
pursuant to, a mediation, is not made inadmissible, or protected from
disclosure, by provisions of this chapter if the agreement is 
signed by the settling parties and any of the following 
conditions are satisfied:
   (a) The agreement provides that it is admissible or subject to
disclosure, or words to that effect.
   (b) The agreement provides that it is enforceable or binding or
words to that effect.
   (c) All parties to the agreement expressly agree in writing, or
orally in accordance with Section 1118, to its disclosure.
   (d) The agreement is used to show fraud, duress, or illegality
that is relevant to an issue in dispute.

1124.  An oral agreement made in the course of, or pursuant to, a
mediation is not made inadmissible, or protected from disclosure, by
the provisions of this chapter if any of the following conditions are
satisfied:
   (a) The agreement is in accordance with Section 1118.
   (b) The agreement is in accordance with subdivisions (a), (b), and
(d) of Section 1118, and all parties to the agreement expressly
agree, in writing or orally in accordance with Section 1118, to
disclosure of the agreement.
   (c) The agreement is in accordance with subdivisions (a), (b), and
(d) of Section 1118, and the agreement is used to show fraud,
duress, or illegality that is relevant to an issue in dispute.

1125.  (a) For purposes of confidentiality under this chapter, a
mediation ends when any one of the following conditions is satisfied:
   (1) The parties execute a written settlement agreement that fully
resolves the dispute.
   (2) An oral agreement that fully resolves the dispute is reached
in accordance with Section 1118.
   (3) The mediator provides the mediation participants with a
writing signed by the mediator that states that the mediation is
terminated, or words to that effect, which shall be consistent with
Section 1121.
   (4) A party provides the mediator and the other mediation
participants with a writing stating that the mediation is terminated,
or words to that effect, which shall be consistent with Section
1121. In a mediation involving more than two parties, the mediation
may continue as to the remaining parties or be terminated in
accordance with this section.
   (5) For 10 calendar days, there is no communication between the
mediator and any of the parties to the mediation relating to the
dispute. The mediator and the parties may shorten or extend this time
by agreement.
   (b) For purposes of confidentiality under this chapter, if a
mediation partially resolves a dispute, mediation ends when either of
the following conditions is satisfied:
   (1) The parties execute a written settlement agreement that
partially resolves the dispute.
   (2) An oral agreement that partially resolves the dispute is
reached in accordance with Section 1118.
   (c) This section does not preclude a party from ending a mediation
without reaching an agreement. This section does not otherwise
affect the extent to which a party may terminate a mediation.

1126.  Anything said, any admission made, or any writing that is
inadmissible, protected from disclosure, and confidential under this
chapter before a mediation ends, shall remain inadmissible, protected
from disclosure, and confidential to the same extent after the
mediation ends.

1127.  If a person subpoenas or otherwise seeks to compel a mediator
to testify or produce a writing, as defined in Section 250, and the
court or other adjudicative body determines that the testimony or
writing is inadmissible under this chapter, or protected from
disclosure under this chapter, the court or adjudicative body making
the determination shall award reasonable attorney's fees and costs to
the mediator against the person seeking the testimony or writing.

1128.  Any reference to a mediation during any subsequent trial is
an irregularity in the proceedings of the trial for the purposes of
Section 657 of the Code of Civil Procedure. Any reference to a
mediation during any other subsequent noncriminal proceeding is
grounds for vacating or modifying the decision in that proceeding, in
whole or in part, and granting a new or further hearing on all or
part of the issues, if the reference materially affected the
substantial rights of the party requesting relief.

So folks it basically boils down to the fact that even if a court changes the label of a mediator’s recommendation order to a child custody recommendation orders, it is still defined as a product originating from a mediator, defined under CA family code section 3160 and CA evidence code section 1115 meaning that the CA evidence code strictly applies.
One would assume that this is a novel issue that has not been addressed by an appellate court or a supreme court; however, that assumption is incorrect as the CA supreme Court has repeatedly stated that Mediation confidentiality is absolute and cannot be used as evidence in any civil proceeding, which by definition also includes family law. The latest ruling on this matter occurred In Cassel v. Courier Superior Court, 51 Cal.4th 113, 244 P. 3d 1080 (January 13, 2011), where the client brought an action against attorneys who represented him in a mediation in a malpractice, breach of fiduciary duty, fraud, and breach of contract action.

At trial the attorneys made a motion in limine using the statute relating to mediation confidentiality (Cal. Evid. Code §1119(a), (b)) to exclude all evidence of communications between the client and the lawyer that were related to the mediation, including what was discussed in pre-mediation meetings and private communications between the client and attorneys during the mediation. The Supreme Court once again ruled that mediation confidentiality is absolute, following similar rulings already defined in Foxgate Homeowners Association, Inc., v. Bramalea California, Inc. (July 9, 2001) 26 Cal.4th 1, where the Supreme Court took a surprisingly strong stand on behalf of mediation confidentiality. In a 6-0 decision, it concluded that there were “no exceptions” to the
confidentiality of mediation communications under Evidence Code §1119, or to the statutory limits on reporting by a mediator under Evidence Code § 1121.

The Court rejected the argument that judicial construction of the statute was needed to avoid frustrating the legislative intent, or to avoid an absurd result. The clear language of the statute precludes mediator reporting, and requires strict confidentiality for all mediation communication.

Advertisements

2 comments on “Child custody recommendation orders vs Mediator’s recommendation orders, Family Law Dilemma, Riverside Superior Court.

  1. Mediators in Calif do not mediate. One Lou Griskey, is a very caring Family mediator who pointed out when ex wife tried to manipulate the system in her favour that this is no mediation. It is an evaluation of the relationship of the parents with the children. Even though all 3 family mediations ruled in my favour the biased judges Sherril Ellsworth, an activist feminist (who has turned against her Church) and Becky Dugan, an activist lesbian (what is she doing in “family” court?) have overturned their recommendations for increased time in order to satisfy their biases and appease the powerful opposing Tim Pittullo who seems to get his way in all courts including Judge Warren using points & authorities that contradict each other from one litigation to another. How can he always win by quoting contradictory P&A? Because judges dont pay any attention to the law and only to the one attorney that paid their re-election campaign funds. And what do those judges get beyond those funds is a mystery that only those who attend the judges’Xmas parties can tell about.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s