NOW - NEW YORK STATE OPPOSE MEMO
Mandated Mediation
S244 (Perkins) A331 (Robinson)
S659 (Weprin) A3252 (Larkin)
|
Search Site With  |
|
|
|
March 2009
Mediation is a closed-door, non-appealable, non-enforceable system. Women’s access to the courts and enforcement of their rights should be expanded rather than denying them due process by mandating mediation in child custody and child support cases in the name of reforming the legal system.
To be effective, mediation should take place when there is equality of power between the parties. In most marriages there is unequal bargaining power between women and men. Women continue to make 77 cents for every dollar that a man makes. As the primary caregivers of children, women often take lower paying jobs, or give up their careers to become stay at home moms, thereby relinquishing their ability to acquire incomes reasonable enough to retain an attorney or other experts to represent them in court. According to a 2007 study “The Economic Status of Working Women in NY and the Mid Atlantic Region,” from the Howard Samuels Center, (www.HowardSamuelsCenter.org/research.html#current2) only 61.6% of women with children works full-time as compared to 87.1% of men. Also, the earnings of these women are equivalent to only 69% of their male counterpart’s earnings. The 2005 National Study of Employers found that a mere eighteen percent of women receive full pay while on maternity leave; down from twenty-seven percent in 1998. In short, women have unequal access to money and power and therefore unequal bargaining power.
The immediate goal of mediation is to settle the case. Consequently, mediators exert pressure on the weaker party (usually the mother) to yield to the more dominant spouse (usually the father). Ultimately, the party that is perceived to be uncooperative in the process or rejecting it may be prejudiced or even punished in court.
The purpose of mediation is to pressure the parents to agree to joint custody or “shared parenting” without any consideration of the best interest of the children. Mediation looks to the future only, and fails to take into consideration past parenting roles, and family traditions. The courts, on the other hand, look at parental roles to ensure stability and continuity of care. Fathers’ rights groups have been lobbying for years to reduce child support obligations based upon the time spent with their children. Joint custody, or so-called “shared parenting”, is a deceptive phrase which may lead to avoidance of, or lowering of, child support payments. Current NY law does not provide for penalties when one parent does not adhere to the shared parenting plan, leaving the primary caregiver (usually the mother) to find ways to financially survive.
NOW New York State finds it troubling that these bills authorize mediators to make child support awards. First, who knows what expertise they have in this area? Second, mediators have no subpoena power, no power to order financial disclosure, and no power to hire accountants and other experts but must rely on “trust.” They must rely on voluntarily produced financial records. It is naive to believe that all financial information would be forthcoming and voluntarily produced in these cases.
Furthermore, wrongly formulated legislation apportions child support based on the percentage of time the child spends with each parent. The Hon. Judith M. Reichler, former support magistrate (formerly known as hearing examiner) in New York County, served on the committee to develop child support guidelines. In testimony she presented to the New York State Bar Association in January 2006, she stated the following: “It is simply more expensive to have joint physical custody because, among other things, of the necessity for duplication of certain household costs in each parents’ home.” She went on to say that a proportional offset method of calculating child support has the potential of depriving children of much needed support. The intent of the sponsors of the child support guidelines was to protect children from unfairly bearing the economic burden of parental separation and allowing them to share in the economic status of both their parents.
While S659/A3252 does acknowledge that cases involving domestic violence, abuse and severe power imbalance are unsuitable for mediation, S244/A331 does not, leaving it up to the mediator to deal with these issues. Mandated mediation is extremely injurious to the victims of domestic violence. During the dissolution of marriage, abusive men may be more likely to seriously harm their spouse and their children. In fact, seventy percent of all instances of domestic violence in a marriage occur after the couple has separated. Victims will be intimidated, possibly unheard, and not given the proper treatment or credence which their special cases deserve because of the physical, psychological, economic, or other abuse from which they have suffered. Although the two bills attempt to deal with the issue of domestic violence, in actuality, mediators are rarely aware of the issue. Mediators claim to be able to ascertain domestic violence or severe power imbalance. The reality is many can’t. Certainly many victims of domestic violence are too intimidated to inform mediators of the problem. Do you think that Nicole Simpson would have disclosed to a mediator at OJ was abusing her? In addition, parents making allegations of abuse, run the risk of losing custody of their children because of the insidious, widespread acceptance of parental alienation syndrome (PAS) (See memo on Mandated Joint Custody). Renowned divorce lawyers feel that domestic violence divorce cases should never be handled through mediation. “It is vital that the case be handled in court” (www.divorce-lawyer-source.com).
Additionally, numerous other problems arise with mediators and with the steps which they will take during mediation. Will mediators truly have the expertise necessary to reach equitable agreements between parties? And how can mediators remain impartial while controlling the potential power imbalances between the parties during mediation? The mediator will also be allowed to make recommendations to the court, thus destroying the confidentiality of mediation and usurping the power of the court.
According to the office of court administration, approximately 95% of divorce cases are settled out of court. For the 5% of cases that are not settled it would seem that the costs of setting up this convoluted, complicated and complex bureaucracy would be better spent by hiring additional in-court personnel who would try to obtain settlements within the court system, with attorneys present and with transcribed proceedings. This is called “case management” which is a more fair-minded, impartial, and evenhanded means to achieve agreement between the parties. Further, since the majority of cases are settled out of court, mandatory mediation would be used in the most recalcitrant cases, with the parties least likely to succeed in mediation. To force noncompliant parties into such a situation is not in the best of the interest of women and children.
NOW New York State adamantly opposes S224/A331 and S659/A3252 and urges the NYS Legislature to also oppose this bill.
Marcia A. Pappas
President
|
