Friday, April 17, 1998 | 10:30 a.m.
What role should mediation play in the settlement of Family Court cases?
While there is consensus that it could ease court calendar logjams and make the legal process less adversarial and less financially and emotionally devastating, there are divergent views on how to structure mediation.
Some of the views were presented at Thursday's day-long legislative subcommittee hearing on Family Court. It was the fourth and last hearing before the subcommittee meets May 27 to adopt recommendations to the Legislature to resolve problems in the much-criticized Clark County Family Court.
Much of the morning session was devoted to the role of the Family and Mediation Assessment Center (FMAC). LaDeana Gamble, family mediation manager for the Eighth Judicial District, said there was a 100 percent growth in referrals to FMAC from 1987 to 1997. About one-third of those cases may have been counted twice because if no agreement had been reached, the case was closed and reassigned.
FMAC was widely criticized in a SUN series on Family Court in January 1997. Litigants claimed FMAC did not thoroughly investigate cases. Even Gamble admits that because of rising caseloads and understaffing, FMAC's reports often were incomplete or inaccurate.
Because of intense media scrutiny and client complaints, FMAC's primary focus now is on mediation, and the agency has outsourced evaluation (assessment) services.
Gamble said there are 35 private evaluators (family and marriage therapists) to whom clients are referred. The $45-an-hour fees are less than half of what private evaluators normally charge.
One of the advantages is a more thorough investigation of issues in a contentious custody case. "We do not have the resources to make home visits on evaluations," Gamble said. "Private evaluators do."
Assemblywoman Sandra Tiffany, R-Las Vegas, a member of the subcommittee, asked if there was a rule of thumb judges used to refer a case to FMAC. Gamble said each judge makes his/her own decision; there's no consistent policy.
Tiffany said she has received more critical calls on FMAC than any other aspect of Family Court.
"Your constituents have a legitimate concern," Gamble said. "People are referred to us on the basis of hearsay. Judges don't feel comfortable making a decision unless they have more information."
Critics contend that FMAC too often is placed in the position of making a recommendation on custody when it should be decided by a judge.
Assemblywoman Barbara Buckley, D-Las Vegas, who is chairwoman of the subcommittee, said that during the last legislative session there was concern that FMAC was at a crisis point, that due to a system overload, it was no longer effective.
"Why didn't the court or your office say no more referrals until you got adequate staffing?" Buckley asked.
Gamble said it was a funding issue; the county didn't consider it a priority. Because of media scrutiny and overload, FMAC put a moratorium on taking new cases for a time in 1997.
Critics also complained that FMAC based its recommendations on hearsay -- not solid evidence.
Gamble said 40 to 50 percent of FMAC's evaluations involved false allegations. "In other jurisdictions, you need proof (of the allegations) before the evaluation," she said. "We don't have that here."
The difference in Family Court mediation compared to civil court mediation is that the "driving issue is psychologically or emotionally based and not legally based," according to Dr. Philip Brushard, director of the Family Mediation Program for the Washoe County District Court.
"The game is to look at the negatives. The court is asked to look at the past rather than current and future needs," he said. "The costs are outrageous. The court should have other tools in the toolbox besides mediation."
Kitty Hardy, a licensed clinical social worker, is a private evaluator to whom Family Court cases are referred. However, her ability to make sound recommendations on custody issues is hampered by her inability to gain access to pertinent information about her clients such as police records, child abuse and neglect reports and previous psychological evaluations.
"If I had access to that information, sometimes my assessment would change," she said.
She said she conducts all interviews with clients in their homes and sees them off hours and on weekends, which she said is an advantage over public agency evaluators.
Charlotte Kiffer, another private mediator with several years' experience in the child custody division, said that prior to the 1997 Legislature's passage of Senate Bill 419 mandating mediation, it was rare for a judge to refer a case to a private mediator.
While she supports the use of private mediators, she expressed concern that some mediators on the referral list do not have the proper credentials.
Ruth Pearson Urban, who will retire next month as manager of the Clark County Neighborhood Justice Center, also supported the use of mediators, but said many people can't afford the fees.
Another major problem is that judges aren't in the settlement mode, they allow people to come back into court for "everything little thing," she said.
"The promotion of dependency on the bench needs to cease. Money that could be spent on children's education is spent in court," Urban said.
She said family law has become a lucrative practice for some attorneys because of the number of Family Court appearances for what formerly were simple matters that the system has allowed to become complex. Families should be encouraged to enter mediation early on in the case to cut the time spent in court.
The Neighborhood Justice Center provides mediation services at no charge, but does not get involved in custody cases.
Urban said private mediators, who are concerned about earning a living, criticize public mediators who provide free services. It should not be a money game because there's "plenty of work to go around," she said.
Buckley, who is executive director of Clark County Legal Services, said there is a need in all areas for mediation and legal services.
"It seems to me that you'd want the Neighborhood Justice Center for those people who don't want to be in court, legal services for people who need help in court, and private mediators for those who can afford the fees," she said.
Urban, who worked in the District Court Child Custody Division for 17 years before heading the Neighborhood Justice Center in 1991, said the then domestic referees resisted a "settlement-minded orientation."
"Ironically, it was these very judicial figures who ran on the banner of mandatory mediation for their campaigns for Family Court, yet they never implemented the program," Urban said.
In the last two years, the Clark County Social Services Department has requested several times to be invited to the Family Court judges' monthly meetings to discuss numerous programs, including the Neighborhood Justice Center. Yet the judges haven't responded.
Another unintended consequence of Family Court, she said, is that judges, "desirous of being re-elected, are being placed in the difficult position of working in the best interest of families vs. serving the interest of the attorneys who contribute to their campaigns."
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