SB 156 MANDATORY MEDIATION:CHILD CUSTODY ISSUES  CHAIRMAN GREEN called the Senate Health, Education and Social Services (HESS) Committee to order in the Anchorage LIO conference room at 9:00 a.m. Due to the lack of a quorum, she stated that the meeting would be considered a work session, and the only action that would be taken on SB 156 would be the taking of public testimony for the record. Number 025 MIKE TIBBLES, staff to Chairman Green, explained that SB 156 was introduced by the Chair at the request of a group of concerned Alaskans who feel the practice of resolving divorce disputes in the courts can often be confrontational and filled with accusations. He said this current system can have many negative impacts on all parties, including the high costs associated with litigation, the length associated with litigation and, most importantly, decisions may be made which may not necessarily be in the best interest of the children. SB 156 was introduced to address these issues. Mr. Tibbles then presented a brief overview on provisions contained in SB 156. Number 070 CHRIS CHRISTENSEN, General Counsel, Alaska Court System, stated the Supreme Court takes no position on SB 156. They believe mediation is generally a good idea, however, they have several concerns with the legislation. The court system's first concern is with costs, and they are still trying to handle on what this might actually cost the state as opposed to what it might cost the parties. They believe that the cost will be substantial. He pointed out that every year, in the City of Anchorage alone, there are several thousand child custody disputes and that number would have to doubled statewide. Some percentage of these people are going to be indigent and the costs of anywhere from one to three mediators is going to be born by the state under those circumstances. The second concern is that the drafter of the bill has confused, to some extent, mediation with arbitration. The legislation provides that a panel of up to three persons is allowed, and this is something that is most often found in an arbitrator setting as opposed to a mediator setting. Also, the bill contains language which says that the mediators are allowed to determine if someone didn't negotiate in good faith and cause the efforts to fail and then pass this information along to the court. Mr. Christensen has talked with several mediators, and they believe that requiring the mediators to make this evaluation and this kind of a judgment goes against the purpose of mediation. The third is with the proposed change to the current court rule, Civil Rule 100, which allows a judge not to use mediation when there has been domestic violence in a relationship, and it absolutely prohibits him or her from using mediation when there is a domestic violence restraining order in effect. Mr. Christensen pointed out that under SB 156 there is no language referring to domestic violence, although it does says that a judge doesn't have to order mediation if there are extraordinary circumstances, but there is no definition of "extraordinary circumstance." Also, it is not entirely clear from the legislation which takes precedence if there is a domestic violence restraining order in effect and a no contact order in effect. Number 115 SENATOR GREEN asked Mr. Christensen if he sees anything that would prohibit the language being improved to take care of the concerns he had outlined. MR. CHRISTENSEN responded that he thinks it would be a relatively easy matter to resolve and that it would not destroy the bill. Number 125 DIANA BUFFINGTON, Vice President, Children's Rights Council of Alaska (CRCA), stated as a local chapter of the national organization, they are committed to strengthening families through public education and advocacy. Family formation and preservation is ultimately favored, however, in the event of a breakup or a family is never formed, they support the child's right to frequent, continued and meaningful contact with both parents and their extended families. Ms. Buffington suggested mandatory mediation should not replace our courts; mediation should be the tool of a court. CRCA supports mandatory mediation if it ensures issues regarding the balance of power among parties be resolved. They support mandatory mediation if it removes the present absurdities and inequalities in the divorce process. They support mandatory mediation if it doesn't drive or force away the nonresidential parent. Ms. Buffington said in the current Alaska divorce, custody visitation and the child support process, a very adversarial climate has been developed that perpetuates conflict between the parents. The system pits one parent against the other, and the fact that two people can't get along, for whatever reasons, and are divorcing or separating, should not result in the children losing a parent. Ms. Buffington believes that SB 156, as it is currently written, also perpetuates this withdrawal process. Sole custody or mandatory mediation that results in sole custody is inherently unfair to the children. The proper way to fix the problem is not through more draconian enforcement procedures as set forth in SB 156. The mediation part of the proposal is not the problem with SB 156. Research shows that if a policy of presumption for joint legal custody is adopted, there will be better child support payments, children will have more contact with their fathers, and there will not be more conflict, there will be more communication. Most important the children will be better adjusted. Ms. Buffington said we need a law that tells mediators and judges to make a rebuttal presumption that shared parenting is in the best interest of the child. The current law allows judges to award shared parenting or shared custody, but it does not presume that such an agreement and arrangement is in the best interest of the child. The current draconian enforcement procedures are the evidence that the enforcement bureaucracy, about a $2 billion enterprise, has had fantastically little success. Most importantly, establishing a presumption for shared parenting as the rebuttal judicial presumption in divorce cases or modification of custody and visitation should go a long way to solving most of these problems. Ms. Buffington stated the Children's Rights Council of Alaska requests a halt on all family law legislation including: divorce, custody and visitation, child support laws, and changes in administrative codes and agency policies and procedures affecting the Alaska Superior Courts and CSED. She suggested the "Child Support Guidelines, The Next Generation" is a blueprint for which to formulate new Alaska statutes and replacement of many of the current passe and unfavorable laws, and many states have and are in the process of passing CRC guidelines. Many of the amendments that are sorely needed and encouraged for SB 156 were included in a law that took effect in Texas in September 1995. Ms. Buffington said that if it is the committee's desire to pass this legislation, she would suggest amending it in the following ways: 1) All mediation procedures should presume shared parenting. require each parent to inform the other parent of significant information concerning the health, education and welfare of the child. 2) Develop a good faith definition clause with well-defined guidelines for the mediators. 3) Change the wording "in the best interests of the child" to "a positive improvement for the child." 4) A mediator or a court should honor the parents' wishes in custody and visitation because parents know their children best. Parents should be required make an attempt to solve custody and visitation disputes through mediation. 5) Allow parents to agree to binding arbitration. In the event a mediation solution is not reached, the case goes to court without reprisals or disfavorable reports by the mediators. 6) The custody or the rights of a parent should not be taken away because he or she is not acting in a broadly or a well-defined term as "good faith." As currently written, even a well-defined good faith is still a term that will be open to broad interpretation even by the most objective of mediators. 7) Allow separate mediation for parents and families who have suffered domestic violence. Amend the bill to read "Domestic violence against either parent or child should be a factor in any custody or visitation determination." 8) Allow custodial and noncustodial parents as mediators or included in the mediation process. 9) Make is easier to shift sole custody of a child of any age to the other parent by showing the change would be a positive improvement for the child, thus eliminating the need to show injury to the child in the previous household. 10) Give noncustodial parents more rights including makeup of visitation. 11) Allow children, age 12 and up, to be part of the mediation process. 12) Strengthen the law that encourages false abuse allegations. In closing, Ms. Buffington said that although mediation is a good idea, SB 156 has far too many flaws in it to make a just law and a positive improvement for the children of Alaska. Number 268 SENATOR GREEN asked if when states other passed children's rights legislation, was that sort of a omnibus total rewrite of the law. MS. BUFFINGTON acknowledged that it was. It was an encompass of the divorce, child custody and visitation and child support laws. SENATOR GREEN commented that in some ways, the points that Ms. Buffington raised sound like a whole additional piece of legislation, and she asked if there was something in SB 156 that could be changed or improved to handle only the mediation process. MS. BUFFINGTON retierated the suggestion to hold off on some of this legislation until looking over the "Child Support Guidelines, The Next Generation" because it addresses some of these issues. She also noted her group would be drafting some proposed legislation. Number 365 MARY ANN DEARBORN, owner of Dearborn Family Mediation in Anchorage, stated she holds practitioner status among the international membership of the Academy of Family Mediators, as well as she teaches family and divorce mediation for the University of Alaska, Anchorage. Ms. Dearborn stated she supports mandatory exposure to the mediation process in all appropriate cases involving child custody and visitation. However, mediation is a voluntary confidential process based on self determination. She said mandatory exposure to the process, which she refers to as orientation, frequently influences to proceed and willingly participate, but she added that you really can't make somebody mediate, they have to want to mediate. Ms. Dearborn also supports equal access to a mandatory exposure to the mediation process in all appropriate cases involving child custody and visitation. Equal access should be provided to all who fall within the population of any legislation which is mandatory. Mediation fees should be covered by the state in all cases in which parties are determined to be indigent. She noted this is a part of SB 156, but she questioned how these costs will be covered and if there will be companion legislation developed. Ms. Dearborn said she supports nonexclusive language for those who would serve as mediators under SB 156. She referred to language in Section 1, which she said has a tendency to set up exclusive as it relates to people who would be performing mediation in these types of cases. She suggested family mediators who have met the professional standards, such as those that are set by the Academy of Family Mediators and have had appropriate training, including specific training in family and domestic violence mediation, should be included regardless of professional background. She believes the legislature should be turning to professional organizations who have already set standards, as well as to those areas of training that might be important through the court system's determination when they set up the court directory of mediators. Ms. Dearborn also believes it is particularly important that mediators be educated and trained in family mediation and a domestic violence component. She suggested that anybody who is doing family mediation can anticipate that the people that they are working with have had either some component of violence in the past or are ripe for some act of violence because it is a highly emotional issue that is being brought before the family mediator. Ms. Dearborn said she supports nonpunitive actions by mediators. Mediators are to be impartial, neutral third parties who do not create bias within a relationship. A mediator's "report," as created in SB 156, creates a bias and a punitive result which is unethical from a mediator's standpoint. SB 156 and its requirement for a report which effectively would remove custody from one party and reward it to the other is a violation of professional mediation ethics, she stated. In closing, Ms. Dearborn thanked the committee for its efforts and urged that work be done on the bill to correct the issues she had identified. Number 530 SENATOR GREEN asked Ms. Dearborn if she was aware of any legislation in place in other states that she would consider the ideal system. MS. DEARBORN responded that she has not researched that particular point, but she suggested that the Academy of Family Mediators might have that information. She added that she does not see a great deal wrong with the current statutes, nor does she feel that Civil Rule 100 is terribly defective, but she suggested that if mandatory exposure to the mediation process if provided, to amend it so that people must attend an orientation session. Number 627 SENATOR LEMAN, addressing the issue of mediation fees, asked Ms. Dearborn if the state now pays for any of her services directly to those who cannot afford to pay. MS. DEARBORN replied that the only state payments that are made to her are through the Legal Trust Fund, which now covers 80 percent of a mediator's fees if the individual has been referred to the mediator by the attorney. However, she pointed out that is for people who are working, it is an earned benefit. She also pointed out that she lowers her fee for people who have been ordered to her and cannot afford to pay her usual fee. TAPE 95-38, SIDE B Number 050 PATRICIA NEAL of Wrangell said she believes that there are child custody cases that are perfect examples of what is wrong with the judicial system in this state and why legislation is necessary to correct these deficiencies. Ms. Neal outlined the circumstances surrounding her husband's attempt since 1992 to gain custody from his ex-wife of his daughter who is now 12 years old and who suffers because of the bias and inequitable manner in which this case has been decided by the court. Number 180 SENATOR GREEN asked Ms. Neal if at some point in her experience, the mediation process could have been put into place. MS. NEAL answered that she really doesn't know, but she would like to think that if they could sit down and discuss things and reach some kind of agreement with the ex-wife that it would work. Number 200 GLENN CRAVEZ, an attorney who has been practicing law in Anchorage since 1981, said he has chaired the Alaska Bar Association's section on alternative dispute resolution since its creation approximately six years ago. Mediation, including child custody mediation, has become an important part of his practice, but the views he was expressing were his own. Mr. Cravez said he is a strong proponent of mediation for child custody disputes because the cost of litigating these disputes can be prohibitive, and that he endorses the bill's goal of resolving more child custody disputes through mediation, but he does have concern with some of the bill' provisions. He said mediation may not be appropriate in cases of recent and/or recurring domestic violence. Mediators with specialized training in domestic violence issues should be utilized to screen these cases to determine whether mediation is appropriate. He does not believe that "extraordinary cause" language in Section 1 of the bill is specific enough to address the domestic violence portion of the bill. Also, the bill doesn't provide a mechanism for screening or evaluating cases before ordering mediation to deal with the domestic violence issue. Section 1(b), as currently written, requires a court to approve any mediated settlement of child custody dispute, unless it find by "clear and convincing evidence" that the settlement is not in a child's best interest. He believes the intent is to minimize judicial second guessing of parenting decisions made by parents in mediation, and, while he agrees with that goal, he disagrees with the language. He said clear and convincing evidence is a very high burden of proof, and to ensure that a mediated agreement is in the best interest of the child while at the same time granting due judicial deference to the decisions of parents reached in mediation, he would suggest deleting the phrase "clear and convincing evidence" from that paragraph. Referring to Section 1(c), Mr. Cravez said most of that paragraph is contrary to the inherent nature of the mediation process. By definition, mediation is confidential, and that confidentiality and the very effectiveness of mediation is destroyed by requiring the mediator to make a report to the court. Mediating is inherently inconsistent with reporting or investigating. He also questioned the paragraph's last sentence from a standpoint of public policy. He said custody awards should be based on what is in the best interest of the child and not be subjected to a clear and convincing evidence test. Section 1(e) provides that the cost of mediation is to born by the state if the parties are indigent. He suggested the question of how much this will cost the state and how eligibility will be determined should be considered. Summarizing, Mr. Cravez said he favors greater use of mediation to resolve disputes in the state, and, specifically, he favors greater use of mediation to resolve child custody and visitation disputes. He added that if SB 156 moves forward in the legislative process, he hopes his comments will be considered so that the legislation, in its final form, accomplishes what its proponents seek, which is more parental resolution of parenting disputes and less judicial resolution of the same. Number 330 SENATOR LEMAN asked if in his suggestion to remove the words "clear and convincing evidence" he was proposing that the standard not be addressed. MR. CRAVEZ replied that if the words "clear and convincing evidence" are deleted, the standard, by default, becomes preponderance of the evidence. There is still a burden of proof there, so a court would still be required to make a finding by preponderance of the evidence. Number 345 MR. CRAVEZ informed the committee that 29 states have enacted statutes that deal with child custody mediation, but, as yet, there is no consensus within the mediation community to what the "right way" of doing this is. He suggested the Academy of Family Mediators, as well as the Society of Professionals of Dispute Resolution would probably have some sort of compilation of statutes that the committee might want to study. Number 370 VANCE STRONG of Anchorage, speaking from personal experience from a dad's standpoint, stated he supports SB 156, but there are facets of it that he believes should be strengthened. He distributed pictures of his two young daughters, who, he said, were the reasons he was appearing before the committee, and who both have suffered hearing problems because of some poor decisions that were made. Mr. Strong related that after not being able to resolve differences with his wife, he went to Mr. Cravez who contacted her and suggested mediation to resolve their differences, but she refused the mediation process. He believes that if there had been mediation at the beginning, he would not have had to enter into the system and lose four years of time. He said in going to the courts, you get into what some call the "butcher mentality" - dad is automatically going to take the second seat, mom is going to take the first seat. That is basically what happened; he ended up with 16 percent visitation time and no higher than that on paper. Physically, he received only 8 percent visitation time with his children. He noted that at no time, after 18 motions in the court, did the courts ever do anything. He said the most important thing is that the children have been stripped from dad. Number 480 SENATOR GREEN asked Mr. Strong if mediation would have assisted him. MR. STRONG responded that mediation would have been a tremendous force in the entire process. SENATOR GREEN commented that some of what he was talking about is not only a child custody dispute between him and his wife, but a problem with the courts, the system and the way things are handled. Number 540 SENATOR GREEN announced the committee would take a five-minute recess. After coming back to order, she requested that the remaining witnesses adhere to a three-minute time limit on their testimony. Number 565 PAM SANDVIK, Executive Director, Valley Women's Resource Center, testifying from the Mat-Su LIO, stated she thinks the underlying reasoning behind the bill is sound in some ways, but it does not provide protection for domestic violence victims. Ms. Sandvik said for mediation to be effective and to be fair, both parties have to have an equal power base, and, in the cases of domestic violence, that just isn't what's happening. The abuser has the power in those relationships, and during the mediation, the abuser will assume control of the process. Ms. Sandvik said another concern is that if one party is unwilling to mediate in good faith, or maybe not mediate at all, or even show up, it may be because of their fear for their own safety. The current proposal automatically gives custody to the other party. Another problem Ms. Sandvik addressed is that the legislation doesn't designate which law takes precedence: whether it is a restraining order or whether it is SB 156. She said if it is SB 156, then it is directly violating restraining or protective orders. She suggested that exempted wording be added to the bill that extraordinary cause or circumstances shall be deemed present on a party to the proposed mandatory mediation is a past or current victim of domestic violence, or a restraining or protective order is in place. She pointed out that 13 states have these laws in place exempting domestic violence victims from mediation. Number 645 GARY MAXWELL of Anchorage, echoed Mary Ann Dearborn's earlier testimony. He thinks that mandatory exposure to the process would be valid at a minimum of a four-hour time limit for mediation so that a professional could determine whether they think mediation is going to be successful or not. However, he is concerned that SB 156 will be adding another layer of bureaucracy to an already fairly dysfunctional system. Mr. Maxwell, in addressing the cost issue for mediation, suggested adding $20 to the filing fee that people already pay to the court system, or to look to the court system for the savings. He said if people get into mediation, then they don't have to have a two or three day custody trial and that could be a tremendous cost saving. Mr. Maxwell has concerns with the good faith language, and he suggested it needs to deleted because it is unethical for mediators to basically try to disclose any of the results of the process. Mr. Maxwell would like to see legislation that proposes a presumption of joint shared custody because then there would not be the mediation issue or the fight unless it is just absolutely not in the children's best interest. TAPE 95-39, SIDE A Number 001 BILL COTTEN, Executive Director, Alaska Judicial Council, said he thinks it is important to recognize that these types of disputes are different from the other disputes that are before courts and that the courts were set up to handle. If it is a contract dispute, the court decides it and the people go on with their lives. But that cannot happen in this type of dispute; that child is still there and is going to be a child for anywhere up to 18 years. The parents, at least if they are going to benefit the child, are going to have to work together in that period, and that is why this mandated solution that the courts can give or that arbitration can give is not an ideal process. That's why a cooperative process of trying to get these people to work together to come up with a solution not only focuses on the problem today, but the problem two years down the road, the problem ten years down to road is very important, and he agrees with mandating people getting into mediation to start with, but then it is voluntary that they continue it. Mr. Cotten said the bill's emphasis on mediation is very positive, and he pointed out that the Judicial Council's study showed that people, even victims of domestic violence, need and ask for an ability to go before a mediator. Number 035 SENATOR GREEN asked if there was currently a provision for mediation in a family court setting. MR. COTTEN acknowledged that Civil Rule 100 actually tries to encourage both the parties and the judge to use mediation, but it is a completely voluntary process. He added that it is very similar to the process being discussed in the meeting, it is just that the first session isn't mandatory. SENATOR GREEN asked if there was any rationale for so few recommendations for mediation coming from court. MR. COTTEN answered that he thinks it has been happening more and more, but it hasn't come nearly as far as needed, so that's why something that mandates the orientation session would be the way to go. SENATOR GREEN agreed that may be the perfect way to go at the first level, to mandate the introduction to mediation. In his closing remarks, MR. COTTEN said that one separate provision in the bill that changes the 30-day period that a pending child custody proceeding shall be stayed to a 90-day period is an extremely worthwhile thing to do, even if nothing else is done in the legislation, because the 30 days just isn't enough time in most cases. Number 060 BOB SHUMAKER, testifying from the Mat-Su LIO, stated his support for SB 156. He believes that mediation can be an effective tool, even in domestic violence situations, in getting the parents to come to some sort of resolution with a good mediator. Number 071 STEPHANIE LORIS, a counselor who works with women and children who are in battering situations and testifying from Juneau, stated she does not think that SB 156 provides for the safety of women and children who are victims of domestic violence, and she suggested it needs more work in terms of ensuring the safety for victims. She said being in the same room with their batterers in a mandatory setting can be very intimidating for those women and even very life threatening. Number 090 LAURIE HUGONIN, Executive Director, Alaska Network on Domestic Violence and Sexual Assault, testifying from Juneau, said she agrees with earlier testimony that domestic violence cases should be excluded from mandatory mediation. She pointed out that the National Council of Juvenile and Family Court Judges opposes mandatory mediation in family violence cases, and that the American Bar Association has concerns with mediation in these cases as well. She said the Network urges exempting domestic violence from any and all mandatory mediation requirements, and they suggest requiring court mediators to be trained in the appropriate screening for violence and in taking action to ensure victims are made aware of their safety and legal options. Number 140 SUSAN WILLIAMS, testifying from the Homer LIO, said she was speaking for the children. She has watched the courts alienate the child and the noncustodial parent. Custodial parents are given all the power and control and the noncustodial parent ends up being removed from the life of the child, which results in more welfare. If less welfare were paid to these mothers and there was more joint shared custody, there would be money, and it is something that should be considered. Juvenile delinquency goes up when there isn't joint shared custody and the court leaves the noncustodial parent with very little access to their children, if any at times. She stated children have the right to be with both parents. She also stated that domestic violence happens to children by one of their parents just as much as it does by one spouse against the other. Concluding, she stressed the need to do something to remove the judges so that they have to stand back and get someone else into the mediation that can do some assistance toward helping our children. Number 175 SENATOR GREEN asked Ms. Williams how she feels about SB 156 and MS. WILLIAMS responded that she believes that there is a desperate need for mediation. Number 443 CAROL PALMER, Advisory President of Victims of Custody, stated that due to her own personal experience, she believes that mandatory mediation is needed. When she and her husband divorced approximately 10 years ago she was given primary joint custody of their son. A little over four years ago her ex-husband found a way to sue for custody by false accusations. These accusations were never proved, but she lost anyway for apparently no reason. Over three years ago her son said he wanted to live in Alaska with his mother, but he has been denied having his say in court. Her goal is to have her son's wishes and desires known so that he can live where he wants to live. She believes that had mediation been an option and having children 12 years and older participating in the mediation, the issue could have been resolved a long time ago and justice could have been served. Number 240 DAVE HANSEN of Anchorage, a professional mediator, expressed his strong support for encouraging the use of mediation in all areas. However, he does have some concerns with SB 156. One is with the language at the bottom of page 1 relating to appointing up to three mediators who have experience in law, child psychology, social work, or other appropriate areas. He suggested adding the language "who have mediation training" after the words "three mediators," as well as adding the word "family" before the words "law" and "social work." Mr. Hansen said he has not looked at all the ins and outs of the pros and cons of jumping to mandatory mediation, and he is not an expert in family mediation, but he suggested taking advantage of the professional organizations here in the state to get their input on the legislation. Number 300 DREW PETERSON of Anchorage, a mediator who practices primarily in the area of family mediation, stated that he favors mandatory mediation, but one of the problems in this field that is really definitional is that there are different people doing different things they call mediation. He said he believes that for mediation to be done effectively in the family area there has to be three things: (1) it has be voluntary; (2) it has to be confidential; and (3) it has to noncoersive. Mr. Peterson believes the domestic violence issue has to be addressed. He suggested there should be domestic violence training for all mediators. To deal with the mandatory aspects, he said there is no reason why the mandatory portion of it even has to involve the people in the same room. He suggested providing language to say that if any domestic violence issue be raised, that it be an automatic rule that the parties will not mediate together, they will mediate separately. Mr. Peterson noted that Senator Green has commented before about there being other mechanisms, and he believes that Civil Rule 100 is a very good mechanism. He would prefer an approach which would incorporate a mandatory element into using the Rule 100 procedure, but with the domestic violence protections he made reference to. He believes it would be a more workable bill than SB 156. Number 420 JERRY BREWER of Anchorage, stated he believes that a lot of problems that our young people experience in society is because they come from broken homes and have only one parent raising them. However, he does not think mediation is the answer to the problem, although it is better than what now exists. He suggested that when people are falsely accused of violence against children or spouses, there needs to be somebody that will be able to mediate and be able to prove that it is untrue, at least to the extent that they are being accused. Number 450 KATHY HAYWOOD of Anchorage, said that from her personal experience, she knows that there definitely needs to be changes made. Unlike some other people who have testified that their children's voices weren't heard, her child's was, but he was only 10 years old and she thinks he was much too young to understand some of the implications of what was going on. She said she doesn't have any specific proposals, but she thinks some of the moral issues such as drugs and alcohol really have to addressed carefully. She pointed out that when there are teenagers involved, they are going to want to go towards the least restrictive environment and that may be an unhealthy environment in a lot of ways. The courts won't give her custody of her own teenage son because he doesn't want to live with her now, but he is living with his father who is currently under indictment for a couple of very serious charges. Number 550 CAROL PALMER said the reason the Victims of Custody requested SB 156 is because they have seen a consistent pattern of the other parent, usually the custodial parent, being very controlling and manipulative with the noncustodial parent and the children, and because of problems with getting the controlling parent to agree to mediation. Number 585 VANCE STRONG added that one of the real issues that also supports this legislation is welfare. If a mother is on welfare and a responsible dad wants to be in his child's life, and then that mother agrees to give 50 percent visitation, that cuts off her welfare fund. That's an incentive for her not to go mediation, and mandatory mediation would take that tool away from her. Number 620 SENATOR LEMAN commented that he and Senator Green are both strong supporters of welfare reform that gets down to some of the core issues of what's breaking the family apart. There is something wrong when there is an incentive not to cooperate, not to participate in the process, and, instead, not to be a functioning member of society, with government not only condoning it, but paying for it as well. Number 646 SENATOR GREEN said she had two people call her and tell her their spouses had checked with AFDC and had made all prior arrangements before they left the house, before they filed for divorce, and had pre-qualified for benefits. She said there is something wrong when our state, by its cooperation, gives people permission to go in a route when there might be others ways to go. There being no further witnesses to testify, SENATOR GREEN adjourned the meeting. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - The following are excerpts from a faxed letter to the committee from Kathleen G. Anderson and James R. Carr of The Arbitration & Mediation Group (TAMG) for inclusion in the record. "We write to offer our testimony concerning SB 156. We are unable to appear in person. TAMG commends Senator Green's efforts to engage divorcing parents in mediation, particularly in resolving issues concerning the parenting of their children. Mediation has been shown to be successful in such cases, for a number of reasons. Those reasons are principally the voluntary nature of the process, the confidentiality of the process (which works to allow parents to explore their true interest and needs), and the neutrality of the mediator (which works to insure that the parties engage in a process designed to empower them both). However, many of SB 156's provisions run contrary to the fundamental principles of the mediation process, particularly in the following: 1) Subsections (a) and (c). A court's mandatory order to mediation, in combination with requiring that the mediator report to the court the identity of a party who "refuses to attend mediation sessions or refuses to negotiate in good faith" voids the empowerment aspect of the mediation process. It breaches confidentiality. NO other jurisdiction has enacted court annexed mediation as is proposed here. The language is contrary to multiple national standards of practice, standards of conduct, and codes of ethics. 2) Subsection (b). Removing discretionary authority from the court, who may be apprised of more information than is a mediator, is a denial of due process. Mediation is only one of the many forums in which conflict may be resolved. It should not be used as the only one. 3) Subsection (c). The provision which requires a court to award custody based on a party's "refusal" to mediate or negotiate is punitive and again, contrary to the basic principles of the mediation process. The use of a clear and convincing evidence standard will only pit parents against one another even more deeply, rather than to bring them to points of collaboration. TAMG has extensive resources which may be of assistance to the Senator, including a recently published compilation of current court-annexed mediation programs from all 50 states. This resource includes program components, structure, statistics, etc. Other resources contain specific statutory language. TAMG would welcome the opportunity to work with the Senator on this important legislation. Please do not hesitate to call."