NOW - NEW YORK STATE OPPOSE MEMO
S-2913-Perkins A-3458 Robinson -
MANDATED MEDIATION
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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 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 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 so-called “shared
parenting”, is a deceptive phrase which avoids 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.
Additionally, this bill does not exempt cases of domestic violence from mandated
mediation. This is extremely injurious to the victim in these cases. 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 which they have suffered from.
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.
Additionally, numerous other problems arise with the mediators and with the
steps which they will take during mediation. These mandated mediation sessions
are to be overseen by interns. Will these 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.
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 S2913/A3458 and urges the NYS Legislature
to also oppose this bill.
Marcia A. Pappas, President, NOW-NYS, Inc.
Gloria Jacobs, Esq., Chair, Domestic Relations Law Task Force
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