The Guide to Child Custody Mediation in California
Mediation can be a useful tool in a divorce or separation by helping the two parties form their own agreements on crucial topics like child custody. In mediation, discussions are facilitated by an objective third-party mediator who encourages an open dialogue in order for the parties to find matters over which they can form agreements. Unlike litigation, mediation takes place outside of the courtroom and gives the parties a greater degree of freedom to craft agreements that work on both sides.
It’s important for anyone entering a divorce or separation to understand the various steps that could be involved in the process. In California, mediation will likely be something you encounter if you and your former spouse or partner share children. Here are the basics of mediation in a divorce or separation in California.
Is Mediation Required in a Divorce or Separation in California?
In California divorces or separations going to court, any case in which child custody must be determined will require mediation. Mandatory mediation occurs early in the timeline of a case involving child custody, and a case cannot continue until this process is completed.
Recommending vs. non-recommending
The way that mediation is handled in child custody cases in California varies between counties. There are recommending (or reporting) counties, and there are non-recommending (or non-reporting) counties.
In recommending counties, mediation is referred to as Child Custody Recommending Counseling. Mediators, referred to as “child custody recommending counselors,” will work with the parties to try to reach an agreement. If the parties do not reach an agreement, the mediator will then prepare a report of recommendations regarding child custody. This report may be shared with each party and their attorneys, but it is ultimately for the judge and can often have a great deal of influence over any decisions a judge makes in a case. Recommending counties in California include Riverside and San Diego.
In non-recommending counties, a mediator will draft a proposed parenting plan that reflects the agreements reached by the parties in mediation. However, if no agreement was reached, the mediator will inform the court as such and no parenting plan will be presented.
One of the biggest differences between recommending and non-recommending in mediation is confidentiality. Mediator reports in recommending counties will include details about what went on during their sessions, while mediation in non-recommending counties is entirely confidential. California counties that are non-reporting include Los Angeles and Orange.
While most California counties utilize CCRC or non-recommending mediation, some counties offer both. The California Judicial Branch offers a useful map that shows you how each county handles mediation.
Mandatory mediation vs. private mediation
While mediation is required in every child custody case in California, the divorcing or separating parties can typically have a say in who will mediate their case. This depends on whether the parties choose private mediation or utilize government resources offered in mandatory court-appointed mediation.
Private mediation services are available for parties who are actively interested in mediating their case. This allows the parties to actually choose their own mediator. Private mediation can be very comprehensive, often allowing the parties to mediate their entire case if they choose to do so.
A court may order mandatory mediation if the parties haven’t already opted into it on their own. Mediation is facilitated through Family Court Services (FCS), a program offered across most counties in California that provides family court-related services including mediation, parenting education, and other family court-related services.
Unlike the broad scope of private mediation, mandatory mediation through FCS is often very limited. Some courts may only offer mediation appointments limited to no more than a few hours.
Mediation and domestic violence
Mediation will be handled differently if domestic violence is present in a case. Family courts in California do not force parties with a history of domestic violence to be in the same room during mediation and allow the mediator to meet with each party in a separate room. In fact, the mediator is required to separate the parties if domestic violence has been alleged under oath, and court-appointed mediation intake processes will include a screening to check for domestic violence in a case.
How much does child custody mediation cost in California?
The cost of mediation will vary depending on which mediation services you are utilizing. Mandatory court-appointed mediation through FCS is free. Private mediation services will require fees from the very start.
Most private mediators charge by the hour and per party, and hourly fees will vary depending on your mediator. Hourly fees typically range anywhere between $100 - $1,000 per hour. While private mediation fees can be somewhat costly, it can be much less expensive when compared to litigating a complex divorce or separation.
Family law professionals in California recognize that not every person who would like to try private mediation can afford to pay for it. There are many legal aid and non-profit organizations that offer pro bono mediation services for low-income parents. Meanwhile, many counties offer volunteer settlement programs, such as the LACBA Family Law VSO, that encourage parties to reach an agreement outside of court by offering free mediation with volunteer attorneys.
How Do You Find a Mediator in California?
If you're seeking private mediation, here are tips to help you select a child custody mediator.
Know the mediator’s background
Find someone with ample experience in mediation or Alternative Dispute Resolution. Many private mediators will detail their practice experience on their website. Most private mediators will have at least a bachelor's degree, but many will have a master’s degree or a Juris Doctorate (JD) degree.
While not technically required for private mediators, court-appointed mediators in California are required to obtain 40 hours of basic mediation training, conduct at least two mediation sessions of at least two hours each that were monitored by a mentor mediator, and yearly continuing legal education thereafter.
Consider their experience in Family Law
Seek a mediator who specializes in Family Law, particularly one who has experience in mediating child custody agreements. This is especially important if you are seeking a private mediator, as there are some who may mediate in other types of disputes. There are many California mediators whose practice is solely focused on mediating in divorce and family law cases.
Many mediators are also licensed family law attorneys. While your mediator is unable to offer legal advice during your sessions, a mediator who also is an experienced attorney could provide a unique insight to the issues presented in your sessions.
While working with a mediator, each party still has the option of obtaining independent legal counsel during the mediation process. Some counties allow the attorneys to attend mediation sessions, while other counties do not. Even if your attorney cannot attend your sessions, you will still be able to seek guidance from them outside of sessions.
Do your own research or seek reliable recommendations
If you're already working with an attorney, they may have recommendations for local mediators. Even if they have a recommendation, it's worth doing your own research online. If you aren't working with recommendations, start your online research by searching for child custody or divorce mediators in your county.
Recognize that in selecting a mediator, the decision won't likely be one that you make on your own. Mediation requires cooperation from both parties involved, so the other party will need to consent to utilize the services of any mediator you recommend.
Be objective when researching and suggesting mediators, seeking one who has the experience your case requires. Don't forget to take cost into account, as this could be an issue in getting the other party on-board with any mediator you suggest.
Note: This information is meant to provide a brief, general overview of mediation processes in California. Please refer to your attorney or other family law practitioners in your area to provide guidance specific to your case.
NOTE: Many state and federal laws use terms like ‘custody’ when referring to arrangements regarding parenting time and decision-making for a child. While this has been the case for many years, these are not the only terms currently used to refer to these topics.
Today, many family law practitioners and even laws within certain states use terms such as ‘parenting arrangements’ or ‘parenting responsibility,’ among others, when referring to matters surrounding legal and physical child custody. You will find these terms as well as custody used on the OurFamilyWizard website.