Plan Would Streamline Domestic Litigation

In 18 years presiding over the family law department of Torrance Superior Court, Commissioner Abraham Gorenfeld said he has seen too much time and money wasted as divorcing couples struggle for the upper hand.

“I’d been on the (family court) assembly line--25 matters in the morning and another 25 in the afternoon--for 18 years,” he said.

But it was not until last year, while he was convalescing after prostate surgery, that he had time to survey “the big picture” and “knew the system didn’t make sense. So Gorenfeld summarized his thoughts on simplifying divorce in an article published in December in the Los Angeles Daily Journal, a legal newspaper.

The article, “The Future of Family Law,” suggested that lawyers should be removed from divorce cases and replaced with neutral mediators, who would settle issues ranging from division of community property to child support payments.

Gorenfeld felt better use could be made of the nearly $1.5 million the county spends each year to operate its 27 family law courts and for the fees paid by husbands and wives to their lawyers.

The article has drawn scorn from divorce lawyers--who say Gorenfeld’s plan would not protect the rights of husbands and wives--and potential support from Los Angeles County Supervisor Deane Dana, who has asked the county staff to study it.

Couples who file for divorce in California must have their settlements approved by a Superior Court judge. Court approval is merely a formality when the settlement terms are not in dispute, but contested divorces can drag on for months--or even years--with unsettled issues being decided in court.

In his article, Gorenfeld proposed that:

All couples in the state filing for divorce should have their cases heard by a court-appointed mediator, rather than a judge.

The lawyers who would be appointed as mediators would be permitted to use common sense in deciding what information to hear and not be limited to the traditional rules of evidence.

Financial experts and family therapists would advise mediators, suggesting how to split assets between couples and how to provide for custody of children and visitation.

The mediators would help couples resolve cases. If unsuccessful, mediators would set the terms of divorces. Their decisions would be binding.

Review by a Superior Court judge would be permitted in some cases, including those involving disputed child custody and where more than $50,000 in community property is at stake. Also, spouses would continue to appear before a judge, as they do now, to have the terms of the divorce enforced.

Lower Costs Cited

Gorenfeld said the proposal would streamline divorce, cutting the expense of both husbands and wives hiring lawyers, appraisers and therapists. The mediators would work with one set of unbiased appraisers and therapists, he said.

Eliminating the traditional rules of evidence would prevent lengthy delays and legal posturing that usually cloud the issues, Gorenfeld said.

The 74-year-old commissioner said mediators, also called conciliators, already have shown their usefulness in settling one aspect of divorce--child custody and visitation.

The Los Angeles Superior Court began mandatory mediation of such disputes in 1978. Mediators last year resolved 64% of the 6,901 cases that came before them, said Hugh McIsaac, the county’s director of Family Court Services. The unsettled cases go to court.

County officials said it costs the taxpayers $3,237 a day to run each of the 27 family law courts, compared to the $462 a day for each of the 19 mediators and accompanying overhead.

Essentially, Gorenfeld’s plan would extend the domain of mediators from decisions about child custody to rulings on alimony, community property and child support payments.

Presently social workers are assigned by the county courts to mediate child custody cases. Under Gorenfeld’s plan, lawyers would mediate disputes over community property, support payments and alimony. Mediators would ensure that both parties in a divorce would have their legal rights protected, Gorenfeld said.

In 1978, the county estimated that child custody mediation saved the taxpayers nearly $150,000. Last year, child custody mediators settled five times as many cases as a decade ago at an undetermined savings to the county, McIsaac said.

Opponents’ Views

Several members of the Los Angeles County Bar Assn. said Gorenfeld’s proposal oversimplifies divorce.

Attorney Joseph Taback, former chairman of the bar association’s family law section, said one lawyer working as a mediator cannot serve the interests of two opposing parties.

“I think it’s wrong to have one lawyer (or mediator) serving two clients,” Taback said. “And I don’t think that two lawyers necessarily means that it has to be more adversarial.”

Other lawyers said Gorenfeld is too quick to do away with rules of evidence that are part of the law to prevent irrelevant and unfair factors from figuring in a divorce settlement.

Hearsay Considerations

They said, for instance, that Gorenfeld’s proposal would permit mediators to consider hearsay evidence.

“In a child support case a wife might say, ‘So-and-so says she knows (the husband) has a second job and she always sees him with $100 bills in his pocket,’ ” said one South Bay lawyer, who appears frequently in Gorenfeld’s court. “That’s total hearsay.”

Such second-hand statements are damaging because the person who claims to have seen the $100 bills is not in court to be cross-examined, the lawyer said. Yet she said an inexperienced mediator, not restricted by the rules of evidence, might use such testimony to increase the husband’s child-support payments.

Gerald Lichtig, chairman of the family law section, acknowledged that the courts are overburdened but said that was not reason enough to throw out the established system for divorces.

He said the executive committee for family law will meet later this month to consider offering a response to Gorenfeld’s ideas.

Another bar association member said: “There is a lot of groundswell in opposition to this article. A lot of people think it’s contrary to mainstream beliefs on the rights of litigants.”