Mediation is a form of alternative dispute resolution that may be voluntary or court-ordered. A mediator’s decision may be final or rejected by either or the parties upon a prior mutual agreement, court rule, or by court order.
Typically, mediation is faster and less expensive than a trial, which is subject to delays, costs, jury problems, appeals of court rulings, and other issues that could prolong the process.
Since 1981, all contested child custody and visitation issues must be submitted to mandatory mediation before going to court. The courts can provide a mediator or the parties can mutually agree to a private one.
Court mediators in California child custody cases are not attorneys and are required to have at least a Master’s Degree and clinical experience in psychology, family and child counseling, or in marriage counseling. There are no requirements for private mediators.
Attorneys are not permitted to participate in a custody mediation and the children may not be present unless ordered to do so. Anything discussed in the mediation is confidential and will not be disclosed to the judge. If the mediator cannot reach an agreement, though, he or she will make a recommendation regarding visitation and custody that courts generally adopt.
In some cases, the mediation will be one whereby the mediator will only make recommendations to the court.
In case there is a history of domestic violence, a party can request that he or she not be in the same room with the other party and a support person may accompany the abused party.
A mediator with the assistance of the parents will come up with a plan that specifies the details of custody and visitation rights and arrangements for the children.
For example, the plan will establish if the parties have sole or joint legal custody that will determine who has the responsibility to make decisions regarding the children’s health, education and welfare; and sole or joint physical custody as well as visitation schedules.
It is generally in the best interests of both parties to mutually agree to a parenting plan as these will more likely work out rather than a court-ordered one that may leave one party resentful. An exception is one where one party insists on an unfair arrangement that has terms that only benefit one of the parties. It is also much less costly if you can agree to a plan rather than facing litigation and a trial.