10.55Folberg referred1121 to Isaac’s research1122 in Los Angeles county where 54.5% of mandatory mediations resulted in written agreements incorporated in court decrees. In contrast, a judge in San Francisco reported that over 90% reached such agreements.1123 Folberg explained this by saying that in San Francisco the mediator makes a custody recommendation to the judge if the parties do not reach agreement. Folberg argued that a fair and just result has particular applicability to custody disputes, because mediated bargaining occurs between parents, and children are not represented and are rarely present.1124 This is particularly important if the mediation is compulsory.
10.56The New York State Law Reform Commission had recommended that contested custody cases would be referred to mediation, unless the judge determined that there was no reasonable possibility that mediation will promote settlement, or serve the best interests of the child.1125 The analysis to date had failed to show that mediation had measurable effects on child adjustment, but those who mediated were more likely to select joint custody arrangements following divorce.1126
1121 “Mediation of child custody disputes,” Columbia J of Law and Social Problems vol. 19; 413, 423. (1985).
1122 “The Family Conciliation Court in LA county,” in Alternative Means of Family Dispute Resolution 131 (American Bar Association 1982).
1123 Judge King reported that of the first 1300 cases he mandated, less than one per cent returned to the courtroom unresolved.
1124 Folberg and Milne, supra at 432.
1125 Ibid at 433. The Commission recommendations are contained in the same article -recommendation no. 242 (b)(3).
1126 The Pearson & Thoennes studies. See summary in Court - Connected Family Mediation Programs in Canada, Research Paper (May 1994: No.20), Alberta Law Reform Institute, at 51.