Mediation in Family Law Explained

In a family law context, mediation is the legal parents' or guardians’ attempt to resolve any child custody and/or child visitation dispute with the help of a family law mediator. The family law mediator is a licensed therapist who is familiar with the law and facts relevant to the case.

Mediation Process: Normally, when a person files a request for orders (RFO) regarding child custody and/or child visitation, the court's clerk will automatically schedule the parents for mediation. The litigants are required to attend mediation before they present their disputes to a family law judge.

Note: In emergency ex parte cases, where parents or guardians are asking the court to make emergency orders related to child custody and/or child visitation, the court’s clerk does not automatically schedule an appointment for mediation. Rather, the litigants attend the ex parte hearing where the judge will order mediation after temporary court order are made, if any orders are made at all.

For example, if mom files a petition for emergency orders related to child custody (ex parte hearing), the court will not schedule a mediation appointment for mom and opposing party (other parent or guardian) at the time of mom’s filing for emergency ex parte orders. This means that the court may hear mom’s request without the assistance of a mediation report (recommendation for the judge as to how he or she should rule on the matter). Instead, mom and opposing party will attend the ex parte hearing where the court will either grant mom’s request, or deny her request. If the court grants mom’s emergency child custody order request, then the court orders are only temporary and intended to last only until the court can have a full evidentiary hearing on the merits. Either way (granted or denied ex parte request for orders), the parties will be ordered to attend mediation before they return to court for a full evidentiary hearing on the matter and where the court will have the mediator’s recommendation before the court makes orders.

Purpose of Mediation: The goal of mediation is to encourage communication and cooperation between the parents, avoid possible inflexible and/or inconvenient child custody and/or child visitation orders, and to ascertain facts sufficient to make recommendations to the court with regards to child custody and/or child visitation orders that best serve the interest of the child.

Agreement at Mediation: At mediation, the child’s parents are free to negotiate and agree to any reasonable child custody and/or child visitation terms, subject to the mediator’s and court’s approval. If the parents cannot agree on child custody and/or child visitation terms in mediation the mediator will make his or her recommendation for terms (orders) to the family court judge (A mediation’s recommendation for child custody and/or child visitation orders are mandatory in disputed cases in both San Bernardino and Riverside County).

The Parenting Plan

A Parenting Plan is an overall child custody and/or child visitation agreement between the parents and/or guardians of a child. If the child’s parents are able to agree on terms regarding child custody and/or child visitation, then the mediator will draft the parenting plan and present it to the judge for his or her signature.

If the judge signs the parenting plan it will become an order of the court. If the parents do not agree on child custody and/or child visitation terms, in whole or in part, at mediation, then the mediator will prepare a partial parenting plan and/or a recommendation for a parenting plan for the court's consideration.

The parenting plan (or recommendation) will address the following: Child custody issues (legal custody, physical custody, sole custody, and joint custody), and/or Child visitation (parenting time) issues (supervised visitation, reasonable visitation, fixed visitation, details of visitation [days, times, location and travel issues related to child visitation]), and more.

Note: Mediators have the authority to exclude attorneys from participating in mediation and most mediators make liberal use of that authority. Nevertheless, attorneys are usually consulted by person about to attend mediation in order to understand the goals of mediation and to better prepare for mediation.

Mediation Safety Concerns

Mediators are required to separate parents by time and/or location of mediation session(s) and to conduct separate mediation sessions for each parent if domestic violence is alleged by either parent in the filed papers.

Note: The request for domestic violence restraining orders (DVRO) may include issues related to child custody, child support, child visitation (parenting time), spousal support, paternity issues (parentage) distribution of community property, and more. However, the mediator will not likely make recommendations to the court as to any legal matter contained in the DVRO request other than recommendations related to child custody and/or child visitation.

For example, if dad, in his effort to protect his child, files a domestic violence restraining order against mom, and in dad’s DVRO he requests that the court find that he is the biological parent of the child he is trying to protect (paternity suit), then the recommendation to the court may include a recommendation as to the child custody and/or child visitation; however, the mediator will make no recommendation as to the paternity of dad. The court will make that determination without the assistance of the court’s mediator.

Preparation for Mediation

Parents and guardians should prepare for mediation. With preparation, consider the following:

  • Seek the advice of an attorney immediately

  • Wear appropriate business attire and cover tattoos

  • Never intentionally misrepresent the facts

  • Focus on the child’s best interest…not yours

  • Avoid excessive note-taking at mediation

  • Bring evidence to support your position or defense

  • Prepare to discuss anger or substance abuse issues

  • Be confident and organized. Review the paperwork!

  • State your parenting plan desires with sound reasoning

  • Be reasonable, but cautious, before you agree to any term.

  • Politely listen to others, but firmly participate in mediation.

  • Do not argue with the mediator; do not raise your voice

  • Avoid unrelated personal attacks on opposing party

  • Prepare to discuss your child needs and desires

  • Do not discuss your case with young children

  • Do not be late to mediation

  • If you are accused of a crime, hire a lawyer without delay

The Mediation Recommendation

As stated, if the child’s parents or guardians cannot reach an agreement in mediation, the mediator will make a recommendation to the family law judge. The recommendation is a suggestion to the family law judge of the orders that the mediator believes will serve the best interest of the child.

The law allows parents and guardians time to review a mediator’s report. If a parent is not satisfied with the mediator’s report (or recommendation) the parent may object to the implementation of the recommended orders.

Objecting to the Mediator’s Report

A mediator’s report is an entire analysis of the mediation, including a factual background, arguments presented by the parents, and recommendation(s).

Common objections to a mediator’s report include: examining the mediator for prejudice, bias, improper application of law or undisputed facts, failure of the mediator to consider relevant evidence; use of impeachment and/or corroborating evidence not available during mediation; and/or conduct discovery to challenge the truthfulness of statements made by the opposing parent during mediation, in court, or in declarations.

Note: A family law judge is not required to adopt the recommendation(s) of the mediator. In fact, it is not uncommon for judges to disagree with at least some aspect of the recommendation(s), and thereafter, deviate from the mediator’s recommendation, in whole or in part.

Mediation’s Limitations

Mediators makes recommendations based on the facts and evidence that is received at mediation and upon the information contained in the court filings. However, when a mediator is confronted with issues related to child custody and/or child visitation that require the opinion of an expert, the mediator can only recommend that the judge appoint an expert as to that legal issue.

For example, a mediator might recommend to the judge that he or she appoint an expert in the field of drug addiction as that issue relates to a drug addicted parent’s ability to care for a child.

Note: Experts appointed by the court to assist the court in resolving a complex legal issues that requires expert opinion(s) are usually called “730 Evaluators.” This language comes from California evidence code section 730, which discusses experts appointed by the court for such purposes.

Failure to Attend Mediation

If a parent or guardian willfully fails to attend court-ordered mediation he or she may be prevented from presenting argument on legal issues at the subsequent court hearing. Also, failure to attend court-ordered mediation could result in civil and criminal penalties (i.e. contempt of court, civil fines, order to pay attorney fees, etc.).

Final Thoughts

Parents may avoid mediation and draft their own parenting plan, so long as the agreement serves the best interest of the child and the family law court approves of the parents’ parenting plan. However, parents may not agree to avoid the requirement of seeking court approval for their parenting plan as that plan relates to child custody or support. Therefore, prenuptial and post-nuptial agreements (inter-marital agreements) that attempt to preempt or absolve the court’s authority on these issues are unenforceable.

For example, any prenuptial agreement that attempts to predetermine which parent will be granted sole legal custody of a child in the event of a divorce between the child's parents, is unenforceable. The court, not the child's parents, have the final say in what child custody arrangement (or child support paid) is in a child's best interest.

For more information on family court services mediation, contact our child custody and family law attorneys today for a free consultation. Our attorneys are standing by to assist you with all legal issues related to family law, including: child custody, child support, alimony, fathers’ rights, grandparents’ rights, Child Protective Service (CPS) defense, juvenile dependency hearings, DVRO matters, legal separation, nullification of marriage, and more. Call today!

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