Custody Mediation

Child Custody Mediation is a process in which a trained professional (the mediator) works collaboratively with parents who cannot, on their own, reach agreement with regard to custody and child sharing of their children. Mediation is a form of alternative dispute resolution (ADR). The goal is to use the process of mediation to help parents reach an agreement that they, together, have created and agree to.

Do All Separated and Divorced Parents Participate In Mediation?

No. Fortunately, most parents are able to agree on a child sharing plan for their children without having to engage in mediation. However, when they cannot agree, mediation is an important alternative way to end their dispute quickly and without ongoing conflict. In most areas, when the issue of child custody is brought before the Court, parents are required to engage in mandatory
mediation before a judge will hear the case. However, parents can agree to use mediation prior to one of them filing a motion before the court in an effort to keep the issue private and out of court.

Who Conducts Child Custody Mediation?

Mediation is carried out by trained professional, most often a mental health professional or an attorney. There is no specific license for mediators. Mediators who work for and are employed by local family courts are often degreed mental health professionals but are not necessarily licensed. Private mediators are typically licensed.

Mediation procedures can vary widely. When parents engage in mediation through their local family court, it is usually the case that the parents meet together with the mediator for one session. When parents engage private mediation, the procedures can differ quite a bit. Some mediators will meet with each parent separately before meeting with them together. Others will meet with them together, then interview them separately before bringing them back together for negotiation. Private mediation also allows for multiple meetings in order to settle problems which can be a great advantage. Sometimes, parents
who cannot otherwise communicate well with one another will meet with a mediator on a regular basis (for example, monthly or every six weeks) to
discuss issues involving their children and reach agreements on matters that benefit from the input and consent of both parents.

In general, mediation can be classified as “confidential” or “non-confidential”.
In non-confidential mediation, the mediator has the ability and responsibility to make recommendations to the Court in the event that parents are unable to reach their own agreement on issues. Confidential mediation, on the other hand, specifically prevents mediators from becoming recommenders. There are plusses and minuses of both styles of mediation. Some people feel that non-confidential mediation is not true mediation but is, instead, a disguised form of evaluation since the mediator will report and recommend. Therefore, parents are on guard and are less likely to be truly honest and open. Others feel that non-confidential mediation does not force parents to try hard to agree and compromise since they know that the mediator has no “power” to recommend or report to the Court. It is important to know and agree to whether mediation is confidential or non-confidential prior to beginning the process.

When parents participate in mandatory court-sponsored mediation, it is
important to know whether the local jurisdiction offers confidential or non-confidential mediation. In San Diego where I practice, for example, all mediation through Family Court Services is non-confidential. Mediators make recommendations regarding child sharing/custody when parents cannot agree.
By contrast, Los Angeles County’s Family Courts offer confidential mediation. If the parents cannot agree, the mediator gives no input to the Court.

Can Any Mental Health Professional or Attorney Mediate?

Since no specific license or training is required for an individual to call themselves a mediator, technically the answer is yes. However, mediation is actually a specific and important skill set. Before you seek mediation, make sure that the person you work with has been trained and is experienced.