CONFIDENTIALITY REVISITED:California Style

• Published date: 01 October 2001
• Author: Hugh McIsaac
• DOI: http://doi.org/10.1111/j.174-1617.2001.tb00622.x
• Date: 01 October 2001

CONFIDENTIALITY REVISITED

California Style

Hugh McIsaac

Stewart

and

I

have

lived

through the legal adversary system and we know what havoc

it

could

have wrought on our family.

.

. .

We were nuts. We were crazy. We were

your

average psychotic

divorcing parents.

.

.

.

What

you do not see

is

we get well. We

bailed

out

of

the adversary court

system because we could

see

it

was no help

to

us. We were the lucky ones.

.

.

.

There are thou-

sands like

us

who could use your help before the war gets

started.

-Parent at the

1978

Midwinter Association

of

Family

and Conciliation

Courts

Conference,

Los

Angeles.

Twenty years before, we made what

I

now consider a fatal compromise with SB

961,

the

first mandatory mediation legislation for custody disputes in the country.’ The bill was being

opposed by

the

director of Family Court Services from Fresno County who wanted to con-

tinue their practice of making recommendations to the court when mediation failed. Senator

Alan Sieroty, the author of

this

bill, asked if we wanted to compromise. He would “go to the

mat” if we wished to continue and hold out

for

nonrecommending, confidential mediation,

even though

it

might risk defeat of the bill in the Senate Judiciary Committee. A young (we

were all young then) law professor, Carol Bruch, argued against the compromise of adding

the

phrase “may, consistent with local court rules, make a recommendation to

the

court.” Our

original bill would not have allowed such a recommendation to be made.

Twenty years later, SB

2

124,

sponsored by Professor Bruch

and

acoalition including Cal-

ifornia Chapter of NOW-the Family Law Section of the California State Bar-and several

other organizations, sought to eliminate this very language from the statutes.2

This

article

summarizes testimony to the Senate Judiciary Committee hearing the legislation, which

passed out of committee and out of the California Senate but which was not carried further by

the bill’s author, Senator Liz Figueroa, because of opposition from the judiciary and media-

tors in her home district, Alameda County.

The legislation, while small in content, was huge in implication. As

Robert

Mnookin

pointed out in his classic article “Bargaining in the Shadow of the Law: The Case of Divorce”

published in the April

1979

issue of the

Yule

Law

Journal,

it

is

not the law itself that is impor-

tant.3 Rather, it is the effect of the law on the parties’ private bargaining in the shadow of the

law that determines the law’s true impact. The issue before

the

legislature was whether fami-

lies who are in the midst of a dissolution, or faced with a significant change in circumstance,

will have the opportunity to resolve their disputes through confidential mediation or whether

they will be drawn into the legal, adversarial system and have an order

imposed

in the name

of mediation but that in reality is something else: an inadequate evaluation.

Confidential mediation encourages family self-determination or private ordering and

helps the family develop its own skills in negotiating conflict in the future; creates a problem-

solving, planning forum

as

opposed to the win-lose paradigm

of

the

adversary system;

involves all interested parties in the dispute resolution process, permitting involvement

of

FAMILY

COURT

REVIEW,

Vol.

39

No.

4,

October

2001

405-414

(33

2001

Sage

Publications

405