Proposed Proposal to Judicial Council to abolish forced mediator recommendation proposed orders in CA family law cases, input from public requested.

PROPOSAL TO ABOLISH THE MEDIATOR’S RECOMMENDATION IN CALIFORNIA FAMILY LAW PROCEEDINGS.

The CA Judicial council allows the public to provide a proposal under CA rules of court 10.21 relating to rules, forms etc and a draft proposal and the request to abolish the forced adoption of mediator recommendation proposed orders has been presented below. Please provide your comments or feedback to be incorporated as applicable.

Pursuant to California Rules of court 10.21, the members of the public hereby present a proposal to abolish the forced mediation process in all family law cases in California.

The trial court system in the State of California has a policy of forcing family law parties into mediation once a request for order is filed.  An informal poll publicly offered to evaluate the mediation process, viewsandnewsriversidesuperiourcourt.wordpress.com/2013/08/27/call-to-the-public-to-express-their-experience-with-family-law-mediation-3/  illustrates that mediation is not effective nor does it comply with the law as defined in California rules of court 5.210 . In 38% of cases mediation did not comply with the CA rules of court; in 25% of cases there was no agreement at mediation and a recommendation was made; in 25% of cases there was no agreement at the hearing or in writing and the recommendation was adopted as the order of the court.

The term used to describe the process is child custody recommendation counseling which is still defined as mediation pursuant to CA family code § 3183.

The purpose of mediation is defined in CA family code § 3161 as follows:

(a) To reduce acrimony that may exist between the parties.

(b) To develop an agreement assuring the child close and continuing contact with both parents that is in the best interest of the child, consistent with Sections 3011 and 3020.

(c) To effect a settlement of the issue of visitation rights of all parties that is in the best interest of the child.

The sole purpose according to the statute is to reach an agreement between the parties. However the Superior Courts have implemented a policy of developing mediator’s recommendations after each mediation which proposes an order to the judge assigned to the case.  The basis of this concept is allegedly based on  CA family code § 3183 as follows:

(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.

CA family code § 3183 specifies that the mediator has to notify the court that the parties have not reached an agreement underlining the sole purpose of mediation, which is to attempt to reach an agreement and only specifies the word “may” as the policy of providing recommendations to the trial court, not a mandatory “shall”. CA evidence code  § 1119 and § 1121 defines the word shall in the context of mediation.

However, the trial courts in the State of California abuse the mediation process, forcing mediation when no agreement can be reached by the parties merely to develop a recommendation and a proposed order that is signed by a mediator and rubber stamped by the assigned judicial officer, in violation of CA evidence code  § 1119, 1118-1121.

The recommendation and proposed order offers no value to the parties as it is considered hearsay under CA evidence code  § 1200 b.

In addition the CA evidence code, (the mandatory process by which a court of law HAS to apply the law), specifies that any statement or conduct that occurred in or originates during the course of mediation is confidential.

The evidence code concerning the practice of mediation is very specific as follows:

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.

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.

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.

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.

This issue has already been addressed in numerous appeal court rulings including the Supreme Court which  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 mandatory mediation confidentiality rule 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.

We the public request the judicial council to abolish the forced mediation recommendation proposed orders  and their recommendations upon which the proposed orders are based and the forced mediation recommendation process when there has been no agreement reached during mediation.

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