Family Court Services: Mediation
Understanding Court-Mandated vs. Private Mediation
When a parent asks the Court to make or change an order regarding child custody or visitation, the parents will be ordered to attend mediation. This type of “mediation” is different from Divorce Mediation, which is typically done by a private mediator hired by the parties.
Here’s what trips people up: court-ordered mediation isn’t really mediation in the traditional sense. You don’t get to pick your mediator, you can’t control the process, and depending on which county you’re in, the mediator might end up making recommendations that become your custody order. It’s more like an informal custody evaluation than true mediation.
Both types of mediation can address issues of child custody and visitation, but in this context, the parties will meet with the Court’s own in-house Family Court Services mediator as required by Family Code § 3170.
The court mediator works for the judge, not for you. Their job is to either help you reach an agreement or (in some counties) tell the judge what they think should happen with your kids. That’s a very different dynamic than private mediation where the mediator works for both parties equally.
Confidential vs. Recommending Counties: Key Distinctions
In some counties, such as Los Angeles and Orange, what happens in mediation is confidential. If the parties cannot come to an agreement, the exact details of the mediation remain confidential, and the Family Court Mediator is unable to disclose to the Court specific details about what happened in mediation or make formal recommendations.
This is actually good news if you’re in Orange County. The worst that can happen is you don’t reach an agreement and you’re back where you started. The mediator can’t tell the judge you were unreasonable or difficult.
Court’s in other counties like Riverside, San Bernardino and Ventura, are known as “recommending counties.” In those counties, the Court’s Mediator will prepare a formal custody recommendation that is submitted to the Court. The mediator may also inform the court about specific discussions that were made during mediation.
If you’re in a recommending county, everything changes. Now the mediator becomes like a mini-judge who can essentially decide your custody case. What you say, how you act, even your body language can end up in a written report to the judge.
The Court often adopts the mediation recommendations, in some manner, in its final ruling.
“In some manner” usually means “exactly as written.” We’ve seen judges rubber-stamp mediator recommendations without much independent analysis. That’s why preparation for mediation in recommending counties is absolutely critical.
The Critical Importance of Mediation Preparation
Because of the importance of Court ordered mediation and the power of the Mediator, we fully discuss the mediation process with our clients and work to hone their skills before the actual mediation takes place. This might seem like overkill to some, but because the stakes are high, especially in “recommending counties,” we do not want to take any chances with your children.
Some attorneys send clients into mediation cold. “Just be honest and tell them what you want.” That’s terrible advice. Court mediation is a specific process with unwritten rules, and going in unprepared is like showing up to a job interview in your pajamas.
Sadly, we are aware of too many cases where the Mediator made poor recommendations, often without having a complete understanding of the true dynamics of the case.
We’ve seen mediators recommend custody arrangements that made no practical sense, fail to recognize signs of domestic violence, or get swayed by whoever was more articulate or better dressed. Some mediators have obvious biases – against working mothers, against fathers, against people who seem “too emotional” about their kids.
It is for this reason that we take the extra step to prepare our clients for mediation so thoroughly. The reality is that whenever the Mediator has an opportunity to make a recommendation, whether it is a formal recommendation or not, it will have some weight with the Court.
Even in confidential counties like Orange, if you reach a partial agreement in mediation, that agreement gets reported to the judge. And if the mediator thinks you’re being unreasonable, they can’t make a formal recommendation, but their body language and comments can still influence the judge.
In many cases, it may actually influence the Court’s ultimate decision about where your child will live and under what circumstances the other parent will be able to spend time with them.
Think about that for a minute. A court employee you’ve never met before, who spends maybe an hour with your family, could end up deciding where your kids live and when you get to see them. That’s why we don’t wing it.
Mediation Procedures and Accommodation Requests
In most cases, unless there are issues involving Domestic Violence or restraining orders, both parties will meet with the Mediator at the same time. If one of the parties is physically uncomfortable meeting with the Mediator and the other party at the same time, which usually occurs in a small room, it is possible to ask to meet separately.
These mediation rooms are tiny – usually just a small conference room with three chairs around a table. If your ex makes you nervous or you have a history of intimidation, don’t suffer through it. Ask for separate sessions.
If you want to meet with the Mediator separately or if you need to appear telephonically for the Mediation appointment, you need to make that request in advance.
“In advance” means when you file your custody motion or response, not the day before mediation. Courts need time to arrange separate sessions or phone appearances.
The Mediation Process: What to Expect
The mediator will usually start by explaining the process and asking each parent what they want for custody and visitation. They’ll ask about your work schedules, the kids’ activities, schooling, and childcare arrangements.
In confidential counties, the focus is on finding middle ground both parents can live with. In recommending counties, the mediator is also evaluating which parent seems more reasonable, more focused on the kids’ needs, and more likely to follow court orders.
Some mediators have pet theories about what’s best for kids – 50/50 custody, primary residence with mom, whatever. Others focus heavily on maintaining the status quo. You won’t know their biases until you’re in the room, which is why preparation matters.
Strategic Preparation for Effective Mediation
We role-play the mediation session with clients, helping them practice explaining their position clearly and calmly. We review the likely questions and help clients prepare answers that focus on the children’s best interests rather than their own grievances against their ex.
We also help clients understand what not to say. Complaining about support payments, rehashing old relationship issues, or making accusations you can’t prove all backfire in mediation.
Most importantly, we help clients present realistic custody proposals that actually work logistically. Asking for a schedule that ignores work commitments or school requirements makes you look unreasonable, even if your underlying concerns are valid.
The goal isn’t to win mediation – it’s to either reach a workable agreement or (in recommending counties) make sure the mediator’s report supports your position.
Frequently Asked Questions
Not even close. Court mediation and private mediation are completely different animals, even though they have the same name.
Who Runs It: Court mediation uses the court's own employees who work for the judge. Private mediation uses neutral professionals you hire together. The court mediator's loyalty is to the court system, not to you.
What They Can Do: In some counties, court mediators can make recommendations to the judge about your custody case. Private mediators never make recommendations - they just help you negotiate.
Control Over Process: With private mediation, you pick the mediator, set the schedule, and control how long it takes. Court mediation happens when the court says, with whoever they assign, for however long they decide.
Confidentiality: Private mediation is completely confidential. Court mediation varies by county - Orange County keeps discussions confidential, but other counties let mediators report everything to the judge.
Cost: Court mediation is free (it's included in your court fees). Private mediation can cost $200-500 per hour, but you get what you pay for in terms of time and attention.
Preparation Time: Court mediation might last 30 minutes to an hour. Private mediation can take multiple sessions over weeks or months, giving you time to really work through issues.
Outcomes: Private mediation ends with an agreement you both sign, or no agreement at all. Court mediation can end with an agreement, no agreement, or (in some counties) a recommendation that becomes a court order whether you like it or not.
Bottom Line: Think of court mediation as a required step in litigation, not as true mediation. It's more like a mini-trial than a collaborative problem-solving session.
Preparation can make or break your mediation session. Go in cold, and you're gambling with your kids' future.
Know Your Goals: Figure out exactly what custody schedule you want and why it serves your children's best interests. "I want more time with my kids" isn't specific enough. Have actual days, times, and logistics worked out.
Practice Your Presentation: You'll have limited time to explain your position. Practice giving a clear, calm explanation of what you want without getting emotional or attacking your ex.
Bring Documentation: Gather school records, activity schedules, work calendars, and anything else that supports your proposed custody arrangement. Don't bring a box of evidence - just key documents that illustrate your points.
Know the Other Parent's Schedule: Understand their work hours, living situation, and availability. Proposing a schedule that ignores practical realities makes you look unreasonable.
Prepare for Common Questions: Mediators typically ask about work schedules, childcare arrangements, school considerations, children's preferences (for older kids), and how you'll handle holidays and vacations.
Focus on the Children: Everything you say should relate to what's best for your kids, not what's convenient for you or what your ex "deserves." Mediators tune out complaints about your ex-spouse.
Stay Calm: Emotional outbursts, interrupting, or getting defensive all work against you. Practice staying composed even if your ex says things that upset you.
Be Realistic: Asking for 100% custody when you've been sharing time, or proposing schedules that don't work logistically, damages your credibility for everything else.
Dress Appropriately: You're appearing before a court employee. Business casual is safest - clean, professional, but not overdressed.
What happens next depends entirely on which county you're in, and this is where things get complicated.
In Orange County (Confidential): If you don't reach an agreement, you're back to square one. The mediator can't tell the judge what happened or make recommendations. Your case proceeds to a regular custody hearing or trial where the judge decides based on evidence and testimony.
In Recommending Counties: The mediator writes a formal recommendation to the judge about what they think the custody arrangement should be. This recommendation carries significant weight and often becomes the temporary or even permanent custody order.
Partial Agreements: Sometimes you'll agree on some issues but not others. The mediator will typically report areas of agreement to the court, and you'll only fight about the remaining disputes.
Timeline: After unsuccessful mediation, you'll usually get a court date within a few weeks to a few months, depending on the court's calendar and whether you need emergency orders.
What the Judge Sees: In confidential counties, the judge only knows mediation didn't work, not why. In recommending counties, the judge gets a detailed report about your case and the mediator's analysis.
Strategic Considerations: In recommending counties, you might want to settle for a less-than-perfect agreement rather than risk a bad recommendation. In confidential counties, you have more freedom to stand firm on important issues.
Cost Implications: Failed mediation means you're headed to litigation, which means attorney fees, possible custody evaluations, and other costs that can quickly reach thousands of dollars.
Preparing for Next Steps: Start gathering evidence and documentation for the custody hearing immediately. Don't wait until the last minute to build your case.
In recommending counties, mediation recommendations carry enormous weight - often more than people realize. Judges frequently adopt them with minimal modification.
Why Recommendations Matter: Family court judges handle hundreds of cases and often have limited time to dive deep into each family's situation. A detailed recommendation from someone who spent time with the family provides valuable insight.
Adoption Rates: While statistics vary, studies suggest judges adopt mediation recommendations in full or with minor modifications 70-80% of the time. That means the mediator is essentially deciding your custody case.
What Influences Judges to Deviate: New evidence that wasn't available during mediation, clear errors in the mediator's analysis, or legal issues the mediator couldn't address might cause a judge to modify recommendations.
Burden to Challenge: If you want the judge to reject a mediation recommendation, you'll need compelling evidence that it's wrong or harmful to your children. Simply disagreeing isn't enough.
Temporary vs. Permanent Orders: Recommendations often become temporary orders quickly, then get harder to change later because courts prefer stability for children.
Quality of Recommendations: Some mediators write detailed, thoughtful reports. Others provide bare-bones recommendations with little analysis. The quality affects how much weight judges give them.
Strategic Implications: In recommending counties, your mediation performance matters as much as your courtroom performance. A bad mediation session can tank your entire case.
Appeal Options: Poor mediation recommendations can sometimes be appealed, but appeals are expensive, time-consuming, and have limited success rates.
The Reality: Many custody cases are essentially decided in a one-hour mediation session by a court employee who's never met your family before. That's why preparation and realistic expectations are crucial.