live testimony under Elkins makes mediation more attractive

A disaster may be looming in 2011 for some of the California family law disputants who don't realize they are free to opt out of the litigation experience by employing mediation or collaborative law processes as an alternate method for resolving their divorce, domestic partnership dissolution, or custody conflicts.

On January 1, 2011, the Elkins Task Force recommendations take effect as newly enacted Family Code section 217, along with other sections like  revised FC 2030 and FC 3121 which are specifically intended to increase attorney fee awards so that both sides have equal access to justice. While these changes may improve the adversary and litigation experience for the wealthiest Californians in some senses, it is not going to help most family court participants. Indeed these "improvements" if they are to materialize will only come after hugely increased lawyer's fees, frustrating calender delays and continuances, increased acrimony between the parties, and strong dissatisfaction by at least one side with a judge's rulings. These changes in the law go to the core of the administration of justice in the Family Courts. As a result mediation becomes even more practical and sensible than ever before.

The Elkins committee which authored these changes was formed in response to Chief Justice Ronald George's 2007 California Supreme Court decision which overturned a policy of the Contra Costa Superior Court that essentially required family law and divorce matters to be heard by declarations, with very little ability for either party to present direct, live testimony or to cross-examine opposing witnesses. Jeffrey Elkins v. Superior Court (2007) 41 Cal.4th 1337. 

In many ways the Court's ruling was inevitable and appropriate. The adversarial system is premised on ideas of due process and evidentiary rules. We assume that when a judicial officer as the "trier of fact" is able to watch and listen to people as they tell their stories, and to allow each side to test the claims of those others who contradict them, that that judge or family court commissioner is able to discern the Truth. Family court judges tend to be extremely dedicated and wise, but the best of intentions cannot necessarily overcome budgetary and time constraints in terms of decision-making on a crowded court docket. This is one reason why many seasoned litigators present their client's cases as a series of "sound-bytes," often with inflammatory rhetoric. Sometimes this obscures the truth.

We are all familiar with "profiling," and to a less dramatic extent the unconscious biases that people - be them governmental officials or ordinary citizens - bring to the analysis of any question, but especially those involving other humans. We all have accumulated preferences and biases, and no matter how sincerely and diligently we work to overcome this trait it seems generally impossible to eliminate. There is danger in giving up the power of decision-making about your marriage, your divorce, your children, etc., to others (including mediators). This is why many mediators resist acting like Solomon and persistently attempt to hand this power back to both parties. Mediators serve as guides - judges do not. 

Nonetheless, in America we have been taught to assume that the best way to resolve conflict is by permitting litigants to compete in the telling of their differing views, and to allow some presumably wiser person to umpire the contest and declare the victor. My opinion is that this adversary courtroom system is the best that exists, but only when all else fails and then as a last and never as a first resort. But I've become cynical about government's ability to do better as an entity in deciding matters affecting our lives than we do for each other as individuals. You are free to disagree. 

Family Code section 217 directs family courts in all hearings, including OSC's and Motion proceedings, which are where temporary orders are obtained before cases reach a Final Judgment (and also again when people seek to modify judgments later), to hear live testimony except where the parties themselves stipulate to allow their matter to proceed by declaration alone or where the court makes a finding on the record of "good cause" to dispense with oral testimony. Oral testimony takes place in something called an "evidentiary hearing."

Because evidentiary hearings take considerable time - anywhere from 30 minutes on simple issues to several days in complex or high-conflict situations, whenever one party refuses to stipulate to forego their right to testify and confront the witnesses on the other side, special hearing dates will need to be scheduled. They certainly won't happen when the parties first arrive in court.  Instead courts will have to set aside special days and times for hearing testimony, or to assign the matter to other courtrooms [which newly revised Family Code section 2330.3 seems to discourage since it recognizes the benefit of assigning cases to one judge throughout the proceedings].

Many questions arise. When then will litigated cases finally get heard? What policies will govern the huge number of cases (read: families) that circle like airplanes awaiting courtroom traffic controller instructions to land, scrambling to touch down at once? Parties to litigated cases will have even less control over concluding their cases than they ever did.

How much will it cost parties to take time off from work in order to attend repeated hearings - never knowing when they are needed or not, or to wait in courtroom hallways for their case to be dealt with - along with the attorneys that accompany them with their fee meters running? How are unrepresented parties going to perform when they are expected to themselves conduct cross-examination, or to know complicated rules of evidence? 

And how are parties going to feel about each other after they've listened to the other spouse, domestic partner, or parent take the witness stand and tell the court, court clerk, bailiff, and courtroom observers what a dishonest or poor mom or dad the other party is? 

Divorce litigation is about to become way more expensive and time-consuming. We invite you to do the math. 

At Desert Family Mediation Services we believe that mediation is the only dignified way to begin to end the financial and emotional interconnections of your relationship. Mediation is not necessarily easy. It is not for everyone. Many people will be forced by their own desires or the attitudes of the other person to wait in the courtroom hallways endlessly. But others will be much more fortunate, and this may be you. 

I predict that the consequences of the Elkins rules in the coming decade will set in motion a backlash that will result in a substantial rewrite of the laws and procedures for family law disputants, and that our coming system will be reforged borrowing many principles seen rarely today outside of mediation. For now the new family code rules are sure to pressure legal consumers to find more economic ways to manage their disputes. 

Mediation looks even more practical and sensible beginning in 2011!

Thurman W. Arnold III
Hon. Gretchen W. Taylor
Certified Family Law Specialists

certified family law mediators

"You Need the Bears"