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Mediation in Family Law

In a family law context, mediation is the parents' attempt to resolve their child custody and/or child visitation disputes with the help of a family law mediator who is familiar with the law and facts relevant to the parents’ case.

When a parent files a request for orders (RFO) regarding child custody or child visitation the court's clerk will automatically schedule the parents for mediation. Parents are required to attend mediation before they present their disputes to a family law judge (except in emergency situations and upon proper request for emergency orders).

The goal of mediation is to encourage communication and cooperation between the parents, avoid possible inflexible and/or inconvenient child custody and/or child visitation orders, and to ascertain facts sufficient to make recommendations the court with regards to child custody and/or child visitation orders that best serve the interest of the child.

At mediation, the child’s parents are free to negotiate and agree to any reasonable child custody and/or child visitation terms, subject to the mediator and court approval. If the parents cannot agree on child custody and/or child visitation terms in mediation the mediator will make his or her recommendation for terms (orders) to the family court judge (A mediation’s recommendation for child custody and/or child visitation orders are mandatory in disputed cases in San Bernardino and Riverside County).

The Parenting Plan

A Parenting Plan is an overall child custody and/or child visitation agreement between the parents. If the child’s parents are able to agree on terms regarding child custody and/or child visitation the mediator will draft the parenting plan and present it to the judge for his or her signature. If the judge signs the parenting plan it will become an order of the court. If the parents do not agree on child custody and/or child visitation terms, in whole or in part, at mediation, the mediator will prepare a partial parenting plan and/or a recommendation for a parenting plan for the court's consideration.

The parenting plan (or recommendation) will address the following: Child custody issues (legal custody, physical custody, sole custody, and joint custody), and/or Child visitation issues (supervised visitation, reasonable visitation, fixed visitation, details of visitation [days, times, location and travel issues related to child visitation]), and more.

Note: Mediators have the authority to exclude attorneys from participating in mediation and most mediators make liberal use of that authority.

Mediation Safety Concerns

Mediators are required to separate parents by time and/or location of mediation session(s) and to conduct separate mediation sessions for each parent if domestic violence is alleged by either parent in the filed papers.

Preparation for Mediation

Parents should prepare for mediation; consider the following issues:

  • Seek the advice of an attorney immediately
  • Wear appropriate business attire and cover tattoos
  • Never intentionally misrepresent the facts
  • Focus on the child’s best interest…not yours
  • Avoid excessive note-taking at mediation
  • Bring evidence to support your position or defense
  • Prepare to discuss anger or substance abuse issues
  • Be confident and organized. Review the paperwork!
  • State your parenting plan desires with sound reasoning
  • Be reasonable, but cautious, before you agree to any term.
  • Politely listen to others, but firmly participate in mediation.
  • Do not argue with the mediator; do not raise your voice
  • Avoid unrelated personal attacks
  • Prepare to discuss your child needs and desires
  • Do not discuss your case with young children

The Mediation Recommendation

As stated, if the child’s parents cannot reach an agreement in mediation, the mediator will make a recommendation to the family law judge. The recommendation is a suggestion to the family law judge of the orders that the mediator believes will serve the best interest of the child.

The law allows parents time to review a mediator’s report. If a parent is not satisfied with the mediator’s report (or recommendation) the parent may object to the implementation of the recommended orders.

Objecting to the Mediator’s Report

A mediator’s report is an entire analysis of the mediation, including a factual background, arguments presented by the parents, and recommendation(s).

Common objections to a mediator’s report include: examining the mediator for prejudice, bias, improper application of law or undisputed facts, failure of the mediator to consider relevant evidence; use of impeachment and/or corroborating evidence not available during mediation; and/or conduct discovery to challenge the truthfulness of statements made by the opposing parent during mediation, in court, in declarations.

Note: A family law judge is not required to adopt the recommendation(s) of the mediator. In fact, it is not uncommon for judges to disagree with at least some aspect of the recommendation(s), and thereafter, deviate from the mediator’s recommendation, in whole or in part.

Mediation’s Limitations

Mediators makes recommendations based on the facts and evidence that is received at mediation and upon the information contained in the court filings. However, when a mediator is confronted with issues related to child custody and/or child visitation that require the opinion of an expert, the mediator can only recommend that the judge appoint an expert as to that legal issue. For example, a mediator might recommend to the judge that he or she appoint an expert in the field of drug addiction as that issue relates to a drug addicted parent’s ability to care for a child. See 730 Evaluations.

Failure to Attend Mediation

If a parent willfully fails to attend court-ordered mediation he or she may be prevented from presenting argument on issues at the subsequent court hearing. Also, failure to attend court-ordered mediation could result in civil and criminal penalties. For more information, see Contempt of Court.

Final Thoughts:

Parents may avoid mediation and draft their own parenting plan, so long as the agreement serves the best interest of the child and the family law court approves of the parents’ parenting plan. However, parents may not agree to avoid the requirement of seeking court for their parenting plan. Therefore, prenuptial and postnuptial agreements that attempt to preempt the court’s authority on these issues are unenforceable

For more information on family court services mediation, contact our child custody and family law attorneys today for a free consultation.

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