NOW - NEW YORK STATE OPPOSE MEMO
S-344 (Larkin) and A-1432 (Weprin) - Mandated Mediation
January 2007
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Mediation is a closed-door, non-appealable, non-enforceable system with no power to order disclosure of assets or hire experts, but instead relies on “trust.” 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 75cents 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 attorneys or other experts to represent them in court. In short, women have unequal access to money and power and therefore unequal bargaining power.
The 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.
Almost all mediated agreements provide for joint custody or “shared parenting” without consideration of the best interest of the children. Mediation looks to the future only, and fails to take past parenting roles, and family traditions into consideration. The courts, on the other hand, look at the past 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 the new term “shared parenting” is a deceptive phrase to avoid current child support guidelines and leads to lower or no 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.
Although the proposed bill exempts cases of domestic violence, mediators are usually unable to identify an abused spouse. Many mediators do not recognize financial, mental, or verbal abuse as official Domestic Violence behaviors. Furthermore because of the stampede to adopting the misguided concept of “parental alienation,” mothers are often afraid to report child abuse, fearing that the courts will accuse them of alienating the children from the father.
The purpose of the proposed mandated parent education programs is to divert custody cases from the courts, driving the weaker party into mediation and then into joint custody. NOW New York State believes that an informational pamphlet discussing custody and visitation could be adequate to educate parents about these issues without the propaganda and the cost of court ordered education programs.
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 children.
NOW New York State adamantly opposes S344/A1432 and urges the NYS Legislature to oppose this bill.
Marcia A. Pappas, President, NOW-NYS, Inc.
Gloria Jacobs, Chair, Domestic Relations Law Task Force
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