California Divorce and Family Law Mediation Blog

Mediation is an attractive albeit unfamiliar alternative to many divorcing couples. Even couples, who are aware of the process, are often uncertain about the concept and benefits of mediation. Adding to the confusion is the fact that California Family Law mandates parties to attend mediation if they have minor children.

In this article, I will highlight some of the differences between court-ordered and private mediation.

Court-Ordered Mediation as Part of the Court Process
If you have minor children, court-ordered mediation becomes part of the divorce process in California courts. Once you file a petition for divorce or paternity, you will be automatically referred to Family Court Services (or the Conciliation Court) for mediation. Failure to attend this mediation can result in sanctions, just as if you missed a court hearing. The mediators working at Family Court Services are court employees and must follow the rules of the court.

Unlike court-ordered mediation, private divorce mediation in California is not part of the traditional court process. Instead it is an alternative for dealing with your divorce. It takes place out of court, except that you have to file the paperwork necessary to obtain your final divorce judgment. Private mediators are not employed by the courts.

Issues addressed during Mediation
Usually, the only issue addressed in court-ordered mediation is child custody. The purpose is to help the parents develop a time-sharing plan and to decide about other custody issues.

In private mediation, on the other hand, you can address and negotiate all of your divorce issues, not only child custody and visitation, but also support concerns, how to divide your property or tax consequences.

Confidentiality
Depending on your county, court-ordered mediation may or may not be confidential. For example, in Santa Clara County, court-ordered mediation is confidential. That means that the court cannot call the mediator to testify about the mediation or to make recommendations to the judge. In counties where there is no confidentiality, the mediator will usually report to the judge about the mediation proceedings.

Private divorce mediation in California is always confidential. Nothing said during the mediation can later be disclosed in court. Sometimes, parties agree on even stricter confidentiality rules.

Time
Since Family Court Services automatically mediates every family court case involving children, court employed mediators have only limited time to mediate your case. Consequently, negotiations in court-order mediation will not be as in depth or complex as you might desire.

In private mediation, you decide how much time you need to discuss all issues. The mediator provides assistance and guides you through the process, but will not put a time limit on any of the issues.

Fees
Since court-ordered mediation is mandatory, you do not have to pay for the services. However, under some circumstances you may be required to pay a fee.

Mediators offering private divorce mediation charge hourly fees. Most divorcing couples decide to share the costs equally.

Summary
While both fall within the broad category of mediation, court-ordered and private mediation are two different approaches. If you decide to use the traditional court process to get divorced and have minor children, you will be ordered to attend mediation in court. On the other hand, you can always choose private mediation as an alternative to resolve your issues and agree on the terms of your divorce.

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Note: This article is not legal advice. It only addresses general matters and should not be relied on by readers or considered legal advice. Only California law is addressed. Contact a lawyer in your state to discuss the specifics of your case and the applicable law.

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