Legislature(1995 - 1996)
02/21/1996 09:30 AM Senate HES
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SHESS - 2/21/96
SB 156 MANDATORY MEDIATION:CHILD CUSTODY ISSUES
Number 001
CHAIRMAN GREEN called the Senate Health, Education and Social
Services (HESS) Committee to order at 9:30 a.m. and introduced
SB 156 as the first order of business.
SENATOR MILLER moved to adopt the CSSB 156(HES), Lauterbach version
K, in lieu of the original bill.
SENATOR ELLIS objected for explanation purposes.
MIKE TIBBLES, Staff to Senator Green, read the following statement:
SB 156 was introduced to help families involved in child custody
disputes resolve their differences through mediation rather than
adjudication. Resolving issues before the courts is often very
expensive, confrontational and competitive to the point where a
parent will often do anything to "win." This all or nothing
mentality can lead to decisions which are contrary to the best
interest of the child.
Mediation, however, leaves the decision making authority up to the
parties involved. In order to win in mediation, the decision must
be based upon the cooperation of both parties. Opening lines of
communication are essential to achieving the goal of shared custody
and responsibility, which are most often in the best interest of
the children.
During the interim the Senate HESS Committee held a public hearing
on SB 156. While most participants were supportive of the concept
of mediation, several concerns were raised as to the cost of the
bill as written, the punitive nature, the practicality of its
implementation and its effect upon families experiencing domestic
violence.
In an attempt to address these concerns, the sponsor of the
legislation formed a citizens' work group to analyze the issues and
propose a new draft to report back to this committee. This group
included members from the Alaska Dispute Settlement Association,
the ADR section of the AK Bar Association, the Supreme Court
Committee on Mediation, AWAKE, Children's Rights Council, Victims
of Custody, the Alaska Judicial Council, the Mat-Su Valley Women's
Resource Center and Alaska Legal services. The product of the
group's efforts resulted in the proposed committee substitute
included in each of your packets.
The premise behind this draft is that, to be effective, mediation
should be a voluntary process and the role of the state should be
to educate the public about mediation as an option already
authorized under the law not to mandate it in every occurrence.
The new draft will require the courts to order parties involved
with a custody dispute to attend an educational presentation on
mediation. This can be accomplished through viewing a video,
listening to an audio tape, or receiving a vocal presentation
either in person or on the phone.
Mr. Tibbles offered to answer any questions.
SENATOR ELLIS removed his objection.
CHAIRMAN GREEN said that the CS has come a long way from the
original bill. The meetings were very interesting.
Number 069
ART SNOWDEN, Administrative Director of the Judicial Branch of
Government, said the court system supported the premise of SB 156.
However, the mandate created by the language "shall" does not leave
any discretion to the judges. This lack of discretion would hurt
the court system for many reasons:
(1) In rural areas of Alaska, many people do not live near a court
and these people file their divorce-custody pleas by mail.
SB 156 does not excuse these people.
(2) Some communities do not have mediators.
(3) SB 156 does not excuse victims of domestic violence. Mr.
Snowden noted that it is unclear as to whether Civil Rule 100
applies to mediation under this section.
(4) Are those who have previously seen a video going to be required
to do so again if they file a modification? What about those
who sought mediation before the divorce?
(5) What about the sick or disabled or those who cannot take time
from work to view the video?
(6) Professional mediators would not be excused from watching the
video.
(7) SB 156 does not address those persons whose first language is
not English.
(8) What about those who move out of Alaska?
Number 118
Mr. Snowden mentioned that if there are not any copyrighted videos,
a great deal of money would be needed in order to create the video.
If there is a copyrighted video available for use, then a number of
videos would need to be purchased since such videos could not be
copied. He pointed out that most courtrooms do not have room to
show the video; would people be required to drive to the nearest
available courtroom showing the video? No fiscal note has been
created because if the final language will determine the fiscal
impact of the bill. With "may" the fiscal note could possibly be
lower than $20,000 while "shall" would increase the cost
significantly. Mr. Snowden assured the committee that judges want
people to see the video and the Alaska Court System supports the
concept of SB 156. The judges should be afforded the discretion to
excuse people from attendance for the reasons previously stated.
Number 157
SENATOR LEMAN related his experience in serving jury duty in which
he was required to watch a video discussing how to serve on the
jury. The video was helpful. Senator Leman felt that it would not
hurt people to see the video more than once. Moreover, airplane
seatbelt demonstrations, fire drills, and many others are performed
on a regular basis. Senator Leman felt that the process should be
the least burdensome.
ART SNOWDEN agreed with Senator Leman. In an area, such as
Anchorage, viewing the video would occur in 99 percent of the
cases. Anchorage is already showing a video in practically all
cases. The court system has every intention of showing the video,
however, making it mandatory in all cases creates a problem. He
reiterated that judges should have some discretion in this area.
Number 192
SENATOR LEMAN asked if there had been any discussion about this
problem with the language. CHAIRMAN GREEN replied no. She
explained that Civil Rule 100 addresses mediation. Chairman Green
believed that very little mediation is recommended, requested or
even discussed in the courtroom. SB 156 merely allows a
conversation about mediation whether by telephone, video, or audio.
This can be done.
ART SNOWDEN reiterated that this would happen in most cases, but
there are problems in various areas in Alaska which need to be
addressed. Mr. Snowden suggested that the language could be
changed from "shall" to "shall where practical" or "may excuse
individually" in order to give the judge some discretion.
CHAIRMAN GREEN asked how the strength of the language could be
maintained with discretionary language. ART SNOWDEN explained that
if a judge can individually excuse a person, that person must come
into court in order to be excused which would mean mediation. Even
with some narrow discretion to the judge, the bill still maintains
its intent. Currently, there is a local order mandating that those
involved in divorce cases view a video regarding the children. The
court system does not have a problem with doing this, but it is not
possible in every case and the language does not allow any
discretion.
Number 225
SENATOR SALO believed that the variety of circumstances in Alaska
is dealt with in subsection (c) on page 1, lines 13-14 which
specifies the manners in which the presentation could be achieved.
She asked if adding "or written presentation" on line 14, page 1
would alleviate Mr. Snowden's concerns. ART SNOWDEN said that it
would be helpful. That language would allow foreign language text
for those needing such.
CHAIRMAN GREEN informed the committee that Senator Salo's language
had been discussed in the work group. The work group was concerned
that it would be interpreted as a pamphlet and would be used first
rather than as a last resort.
SENATOR LEMAN believed that there is a manner in which to deal with
these concerns. Perhaps, the language could indicate that the
court could substitute, with good cause, the in-person educational
presentation by mailing the appropriate materials.
ART SNOWDEN pointed out that in communities that do not have
mediators and cannot get mediators, this is not practicable. Mr.
Snowden indicated that copyrighted videos would be expensive.
Hopefully, the audio portion could be created by the court system.
He said that the preferred method could be stated in the
legislation, but the other rare situations in which the preferred
method would be impractical could be allowed to provide other
options.
SENATOR LEMAN asked if the copyright laws for videos were similar
to those of music copyrights. Would there be a fee for each time
the video is shown? ART SNOWDEN clarified that the video cannot be
duplicated, if more copies are needed then they must be purchased.
There is not a fee for each time the video is shown. Mr. Snowden
indicated that the court system could produce a audio tape for
rural areas, however, there are no translations for certain terms
in other Native languages and often there is no mediator available.
Perhaps, it would be better to send the video regarding the
children of divorce rather than on mediation.
Number 294
SENATOR SALO offered the following amendment: page 1, line 14,
delete "or"; insert a "," after "vocal presentation"; and insert
"or where necessary written materials".
SENATOR LEMAN suggested that Senator Salo's amendment be a
conceptual amendment. The bill drafter could develop language to
achieve the intent of Senator Salo's amendment.
In response to Senator Salo, CHAIRMAN GREEN said that SB 156 goes
to Senate Judiciary next and then Senate Finance.
ART SNOWDEN appreciated the cooperation of the committee.
SENATOR SALO clarified that her amendment was intended to address
Chairman Green's concern that the material not become merely a
pamphlet on mediation.
Number 323
MARY ANNE DEARBORN, testifying from Anchorage, appreciated the
committee's work on SB 156. She supported SB 156. In response to
one of Mr. Snowden's comments, Ms. Dearborn believed that rural and
bush communities do have mediators and conflict resolution is more
prevalent in those communities than in more urban settings. Tribal
court mediators and elders in community are well qualified and able
to be deal with conflict.
BILL COTTON, Executive Director of the Alaska Judicial Council,
explained that one of the Council's responsibilities is to research
ways in which the court system can do its job better and cheaper.
Mediation and SB 156 are good steps in that direction. He urged
the committee to favorably consider SB 156. There are mediation
videos and tapes on the market that are not expensive. Mr. Cotton
suggested that attorney's could also purchase these videos and make
them available for their clients. Furthermore, Blockbuster has
public service videos such as these for rent. The Council offered
to work with the court system to buy videos.
DIANA BUFFINGTON, Children's Rights Council, disagreed with Mr.
Snowden. Ms. Buffington informed the committee that two of her
clients were recently denied court order mediation because the
judge felt that it was a waste of time. Mediation is not being
widely used in Alaska courts; currently, Alaska ranks 50 nationwide
in the use of mediation. Ms. Buffington said that bush communities
have poor education and written communication would not be helpful
in these areas. The Children's Rights Council is willing to
provide free weekend programs in the major communities as well as
some of the bush communities.
Number 371
CAROL PALMER, Advisory President of Victims of Custody, agreed with
Ms. Dearborn regarding the ability of the Tribal Council to act as
mediators. Victims of Custody is in the process of making a
brochure. Ms. Palmer offered to make a videotape. She informed
the committee that she had seen a videotape entitled, Mediation:
It's Up to You which was suggested to be used in the courts.
DIANE LO RUSSO, testifying from Palmer, informed the committee that
she had been working with domestic violence victims for 10 years.
She expressed concern that there is no language in SB 156 which
addresses the danger of mediation in cases where domestic violence
is present in the relationship. She echoed Mr. Snowden's
consideration of Civil Rule 100. The National Battered Women's Law
Project and the National Association of Women and Family Law have
produced information cautioning the use of mediation in such cases.
She asked what type of qualifications were necessary to become a
mediator in Alaska. Not so long ago, anyone could call themself a
mediator.
CHAIRMAN GREEN said that SB 156 merely makes the video available to
those involved in child custody disputes. DIANE LO RUSSO
emphasized that most of the mediation information does not address
nor caution those who have relationships with a history of domestic
violence that mediation may not be the appropriate venue.
Number 416
CHAIRMAN GREEN clarified that SB 156 makes the information
available, the bill does not require confrontation.
ROBERT SHUMAKER thanked the committee for their work on this bill.
He was sorry that the bill was no longer mandatory. If the current
system was working, this bill would not be up for consideration.
He said that children should be the focus. He hoped that the
mandatory aspect of this would return next year. He said that a
skilled mediator would not allow domestic violence to be a problem.
Mr. Shumaker supported the bill as well as making mediation
mandatory.
JAYNE ANDREEN, Executive Director of the Council on Domestic
Violence & Sexual Assault, appreciated the committee's work. She
expressed concern that there is no opportunity for the courts to
exclude people from the education program when a history of
domestic violence is present. Furthermore, the education does not
address the dangers of mediation in domestic violence cases. Could
cautions regarding domestic violence in the mediation education be
added? Victims want to use the most non-threatening way to deal
with their offender which leads to the attractiveness of mediation.
Even with a skilled mediator, the imbalance of power still exists
in the majority of cases.
Number 456
SENATOR SALO did not believe that anyone would be harmed by
education and information. Perhaps, the content of the education
materials could address this domestic violence concern. She
indicated that the council could work with the material in order to
influence its content so as to address their concerns. Senator
Salo hoped that Ms. Palmer and the Victims of Custody would share
the development of mediation materials with the court system in
order to receive suggestions on the content of the materials.
CHAIRMAN GREEN informed the committee that the Victims of Custody
focuses on the child support enforcement and non-custodial parents
and the abuses that occur during the divorce, the court proceedings
and afterwards. Domestic violence was not an issue until the
citizen's work group met. She reiterated that viewing these
materials is not harmful or threatening.
JAYNE ADREEN explained that the victims want to end the abuse and
a third party mediator is very enticing. She related her
discussions with about a dozen victims who had voluntarily utilized
mediation in child custody and support issues. After about six
months to a year, most of these victims realized that the abuse had
effected the proceedings and an equal process did not result.
SENATOR SALO indicated that such a scenario could also happen in
court. The mediation is not mandated. She reiterated that Ms.
Adreen's concerns could be addressed in the materials.
JAYNE ADREEN said that the council would be happy to work with the
court system in ensuring that domestic violence concerns are
addressed in the materials.
SENATOR SALO agreed to her amendment being conceptual. Therefore,
without any objection, the conceptual amendment was adopted.
Number 509
SENATOR MILLER moved CSSB 156(HES) as amended out of committee with
individual recommendations. Hearing no objection, it was so
ordered.
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