Under California’s Family Code, mediation is mandatory in any proceeding that involves child custody or visitation. Under these provisions, the court will order mediation, whether the underlying proceeding involves legal separation, divorce, stepparent or grandparent visitation, or paternity.

The only cases in which the court will not order mediation are those where a parent has requested a temporary custody order due to child abuse or neglect. In another exception, parents can avoid the mediation requirement by reaching an agreement before the mediation takes place and filing the agreement with the court.

Parents can satisfy the mediation requirement through a private mediator or a mediator who works for the court. Although a mediator might not resolve every parenting issue, picking the right mediator can improve the chances of working through issues in the proceeding.

Here are some things you should know about the differences between a private mediator and a court-appointed mediator.

What Is Mediation?

Mediation is a form of alternative dispute resolution. Mediation is not binding. In other words, mediation may or may not produce an agreement between the parties. This feature is what makes mediation distinct from binding arbitration.

Instead, a mediator tries to get each party to understand the other’s positions and concerns. In mandatory mediation under the Family Code, the mediator meets with each parent to understand their goals and concerns. The mediator may also meet with the child or children if the mediator believes they can provide useful input.

The mediator may separate the parents or bring them together, as they see fit. The mediation can include each parent’s lawyer, but the mediator has the discretion to exclude the lawyers from the mediation if their participation interferes with the process.

The Goals of Mediation

Knowing where the parents’ interests overlap and diverge allows a mediator to find areas of agreement and disagreement. Even if the parents contest various issues, the mediator might find some points of agreement between the parents.

The issues to be addressed by mediation include:

  • Parenting plans
  • Custody
  • Visitation

The mediator will attempt to find common ground between the parents by guiding them to areas on which they agree or can reach an agreement. If the parties do reach an agreement, they can report the points of agreement to the court. If parties cannot reach an agreement, courts in San Diego County require the mediator to recommend a proposed plan.

Who Can Mediate?

Court-appointed mediators must meet certain qualifications, which include:

  1. Completion of at least 40 hours of custody and visitation mediation training during their first six months of employment as a mediator
  2. Completion of eight hours of continuing education programs, conferences, and workshops related to child mediation, plus four hours of domestic violence training every year
  3. Participation in job supervision and performance reviews

Private mediators do not need to meet the same requirements. However, most private mediators have training in alternative dispute resolution and family law. Some work as family lawyers when they are not mediating cases.

Benefits of Private Mediators

Private mediators provide a few benefits to the parents, which include:

Choice

The parents choose a private mediator, instead of simply receiving an assigned mediator. This allows the parents to choose a mediator based on recommendations from their friends or lawyers.

Expertise

The parents can choose a private mediator who has experience relevant to their case. For example, parents of a special-needs child can choose someone who has dealt with children with disabilities in prior cases.

Time

Court-appointed mediators have limited time to work on a case. In some counties, a mediator might only offer a single, one-hour mediation session. If the parents honestly believe that they can work out the custody issues through mediation, they might prefer longer sessions or multiple sessions offered by private mediators.

Scheduling

Mediators appointed by Family Court Services might have very full schedules. As a result, you may not receive an appointment for weeks or months after the court orders it to be done. Hiring a private mediator can help parents keep the court proceedings on track.

Benefits of Court-Appointed Mediators

Court-appointed mediators provide a number of benefits to the parents.

Lower Costs

Courts do not charge anything extra for mediators in mandatory mediations. This means you will not need to pay for mediation on top of the filing fees for the court proceeding.

Private mediation can cost parents anywhere from $100 to $1,000 per hour. Using court-appointed mediation can provide the parents with significant cost savings.

On the other hand, if mediation reduces the issues the court will have to resolve, the use of either private or public mediators can reduce the parents’ overall legal fees.

They Are Known To the Judges

Judges know the court-appointed mediators. San Diego County requires mediators to produce a recommended plan if the parents cannot reach an agreement. A court-appointed mediator will know what the judges like to see in their recommended plans and can provide a plan that a judge will adopt.

There’s a Lower Risk of Conflict of Interest

Although mediators must abide by ethical rules, hiring a private mediator runs the risk of the appearance of a conflict of interest. For example, hiring a mediator who is friends with the lawyer who represents one of the parents can create the appearance of a conflict of interest. 

Even if the mediator conducts the mediation and produces the recommendations in a completely unbiased way, the parties might feel that a potential conflict of interest tainted the process.

Choosing Between a Private or Public Mediator

If both parties believe they can reach an agreement on more than just custody, visitation, and parenting plans, they can hire a private mediator to handle most of the divorce or separation. This could make the entire proceeding much easier and faster.

On the other hand, if the parties believe that mediation will not resolve any issues, they can simply choose to use a court-appointed mediator. This will save both parents money to spend on lawyers to battle over custody, visitation, and parenting plans.