Unlike most states, California requires by law that parents participate in mediation before the court can hold a hearing on custody or visitation. This obligation is established in Section 3170 of the California Family Code and applies to both initial cases and modification requests.
What Mediation Is and Is Not
Mediation is a process in which a neutral professional — the mediator — facilitates conversation between parents to help them reach an agreement on custody and the visitation schedule. The mediator is not a judge, has no power to decide, and cannot force either party to accept anything. Their role is to facilitate, not impose.
The Critical Factor: Recommending vs. Non-Recommending Counties
This is the most important thing to know before going to mediation in California, and many litigants are unaware of it.
Recommending Counties
In counties such as Los Angeles, Riverside, San Bernardino, and most of the state, the mediator can — and often does — submit a report or recommendation to the judge if the parties do not reach an agreement. This recommendation carries significant weight. What you say in the session can directly influence what the judge decides. In these counties, the mediation session is, in essence, part of your case.
Non-Recommending Counties
In counties such as San Francisco, Santa Clara, and some others, mediation is strictly confidential (Family Code §3177) and the mediator does not report to the judge. Here the goal is exclusively to reach an agreement, and if not achieved, the case proceeds to hearing without the mediator having reported anything to the court.
Before your session, find out which type of county you are in. This completely changes your communication strategy in the session.
How to Prepare for the Mediation Session
- Bring a written parenting plan proposal: a typical weekly schedule, weekends, vacations, and holidays. Showing you have a concrete, child-centered plan reflects well on you.
- Focus on the child's needs, not your complaints about the other parent. Mediators are trained to identify parents who prioritize conflict over their child's wellbeing.
- Be punctual and professional. First impressions matter even in mediation.
- Listen actively. Sometimes the mediator facilitates proposals from the other parent that may be more reasonable than you expected.
- Don't reveal information you wouldn't want to reach the judge, especially in recommending counties.
What Happens if You Reach an Agreement
If the parents reach an agreement in mediation, it is documented in a "Child Custody and Visitation Agreement" that is submitted to the judge for approval. Once approved, it has the same force as a court order. This is the best possible outcome: it is faster, less costly, and generally produces more durable agreements than judge-imposed orders.
What Happens if No Agreement Is Reached
If mediation fails, the case proceeds to a hearing. In recommending counties, the mediator will submit their report to the judge. In non-recommending counties, the judge will simply know that mediation did not produce an agreement and will proceed to hear both parties' positions.
Agreements reached in mediation have significantly higher compliance rates than judge-imposed orders. Parties who negotiated their agreement have greater commitment to following it.
— Emery et al., Family Court Review, 2001