If Mediation Works, Can I Avoid Going To Court to Settle Child Custody Issues?

, I am frequently asked about family law mediation. Specifically, mediation within the family law court and private, family law mediation.

Mediation in the San Diego Superior Court: Under California law, all family law cases involving child custody or visitation must first mediate before a family law judge rules on the child custody or visitation issue in family court. Since most parents don’t know a private family law mediator they have their required mediation in Family Court Services which is a part of the Family Law Court. Although the process is called “mediation”, strictly speaking is “nonbinding intervention between parties…in a dispute to promote resolution of a grievance, reconciliation, settlement, or compromise” (Merriam-Webster’s Dictionary of Law).

In Case of Disagreement, Arbitration Will be Used

However, “mediation” in the San Diego Family Law Court is closer to arbitration than mediation in that if the two parents cannot agree the “mediator” will file a report with, and make a recommendation to, the San Diego Family Court Judge. This form of Family Law mediation is non-voluntary and the recommendation by Family Court Services carries much weight with the family law judge. I highly recommend that parents prepare for this family court mediation with a divorce lawyer, especially a Certified Family Law Specialist. I have developed my own preparation over twenty-five years having discussions with both of the Family Court Services’ directors and numerous Family Court Services mediators. With this type of mediation the parties are ordered to attend and a recommendation is issued to the family law court whether or not the parents agree.

Private Mediation

Typical examples of private family law mediation includes mediators who are divorce attorneys, non-lawyer mediators, and teams (consisting of divorce lawyers and non-lawyers), for example “collaborative divorce”. I have been selected as the mediator (alone) working with a couple. I have frequently been retained as a family law attorney for one party and I’ll mediate with the other party and that party’s divorce attorney. Give me two parties who want to settle their family law case and another divorce lawyer who is committed to the family law mediation process and I’ll have a settlement in a few meetings. (My last family law mediation of this type took two meetings to reach a full settlement.)

I am also retained to take a family law case into private family law judge mediation (for example, JAMS). Here the judge is retired. Unlike a case in the Family Law Court where the family law judge is often overloaded with cases, the private, retired family law judge only has your case schedule—yours. These family law judges (retired) have a history and background in family law, the time to devote to knowing your case and the inclination to seek a just resolution. If I had a preference, all of my family law court cases would go to a private, retired judge.

I’m experienced in family law mediations and family law negotiations. I believe in this process. I recommend that if you go into family law mediation, you hire the most qualified divorce attorney that you can (especially a Certified Family Law Specialist). The higher cost in legal help will pay off if both attorneys know family law as they will know the probable family law result of your case and you will save thousands in avoiding litigation in the family law court.

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