Child Custody Mediation
Mediation and its Purpose
Mediation is a form of negotiation between people with the help of a professional mediator who will assist them in reaching an agreement regarding custody and parenting issues. Mediation is provided free of charge to the parties and generally occurs before the first Court appearance.
The purpose of mediation is to:
- Help reduce the hostility that may exist between the parties;
- Develop an agreement that assures the child(ren) frequent and continuing contact with both parents and that assures the health, safety and welfare of the child(ren).
- Achieve a resolution of the issues of custody and rights to parenting time that is in the best interest of the child(ren).
Rule 5.210 of the California Rules of Court requires that the Court provide an orientation to inform the parents about the mediation process, the role of the mediator, how to address the developmental needs of children, limitations on confidentiality and other child custody issues. The Calaveras Superior Court complies with this requirement by offering a parent orientation class that may be taken on-line or attended in person.
What is Mediation Orientation?
Mediation Orientation is a program designed to teach parents about children's developmental stages and how they impact parenting plans. Time is also spent discussing conflict resolution, effective methods to "co-parent", and Calaveras Superior Court's model for mediation and evaluation.
Mediation Orientation is held on-line or at the Self-Help Center at the courthouse and lasts for about 1 hour. There is no fee for this class. It is very important that you make every effort to complete this class.
How the process begins:
When a party files an Order to Show Cause (OSC), or Notice of Motion (NOM), they will be asked to do three things.
- Attend mediation orientation, either on-line or by attending class
- Attend mediation and
- Attend the Court hearing.
The clerk will give the parties appointment dates for mediation sessions and the court hearing.
Do children attend orientation?
Children should not attend orientation. This class is for the parents only.
What if I can't complete the parent orientation class?
If this occurs, it is important that you still appear at your mediation date, and at your Court hearing. However, you should be prepared to provide an explanation to the judge why you did not complete the parent orientation.
What does mediation include?
Mediation includes interviews with the parents and any other parties legally joined in the case. Mediation also includes the review by the mediator of the "Social History" form that is completed prior to attending mediation.
When does mediation occur?
Generally, mediation occurs approximately two weeks before the scheduled Court hearing on disputed custody and visitation issues. Prior to the mediation appointment, the parties take a Mediation Orientation Class (available on line or in person at the Family Court Services office) which will help prepare them for the mediation process.
Who conducts the mediation?
The Court employs or contracts with experienced counselors who have graduate degrees and specialized training in areas pertaining to children and families. These areas include, but are not limited to, conflict resolution, parenting techniques, children's developmental stages, domestic violence, substance abuse, and child abuse and neglect.
Are both parties interviewed together?
Yes. Mediators interview both parties together. The exception to this policy is if there has been an alleged history of domestic violence or when there is a protective order in effect and one party has requested separate interviews. (Family Code 3181) see below
Domestic Violence or Restraining Order has occurred?
If there has been a history of domestic violence or if there is a restraining order in place, the parties are entitled to separate mediation sessions and customers are advised to inform the front counter staff of the restraining orders prior to the setting of the mediation appointments. This will allow court staff the ability to set separate appointments and maintain confidential address
What if we reach a full agreement during mediation?
In most cases, parties can successfully resolve conflicts and agree on a custody and parenting plan. In such cases, the mediator will prepare a written agreement for the parties to sign. This is called a stipulation. The original will be entered into your court file and you will each receive a copy. You will still need to attend your court hearing and affirm the agreement in Court.
What if we can't reach an agreement?
If the parties are unable to reach a full agreement, all unresolved issues will be addressed before the judge at the next hearing and the judge will determine the plan.
Does the mediator make recommendations?
Generally no, as this is a confidential, non-recommending Court. However, in certain cases the mediator can recommend that an attorney be appointed to represent the child(ren) (Family Code 3150) and/or that the parties be referred for a child custody evaluation. (Family Code 3183)
What if I miss my mediation appointment?
Because of the short time frame between the mediation appointment and the Court hearing, another appointment usually cannot be scheduled. Requests to reschedule mediation appointments should be addressed to the assigned mediator who may or may not be able to accommodate the request.
If one or both parties fail to attend mediation, the Court will be notified. If this occurs, it is important that you still appear at the Court hearing on the date scheduled. However, both parties should be prepared to provide an explanation to the judge why they were unable to attend mediation. You may also be required to reimburse the court for the mediator's cancellation fee.
Can I talk to the mediator before the mediation appointment?
"Ex parte contact" is not allowed by parties or attorneys at any time prior to completion of the report. Ex parte contact means one party (or attorney) contacting the mediator without the other party being present or having knowledge of the nature of the discussion.
Ex parte contact after the report is completed is permissible. If the mediator needs to revise the report then the mediator will write an addendum and mail it to both parties and/or their attorneys.
Can I bring a support person to mediation if I have a restraining order?
Yes. A support person may accompany you to the mediation appointment. However, the support person cannot participate in, and is required to maintain confidentiality of, the mediation session.
A mediator may exclude a support person from a session if:
- The support person attempts to participate in the session;
- The support person acts as an advocate for the victim in a session;
- The support person's presence or actions disrupt the session.
Are mediation reports confidential?
Yes. Mediation reports are confidential and are not allowed to be copied or distributed to anyone other than the court, an attorney of record, or the named parties to the proceeding, with the following exception:
In certain instances the Court allows the exchange of information to other agencies in the justice system. Specific information can be obtained from FCS.
What if the Mediator has a conflict of interest?
Mediation/evaluation of cases that involve family law attorneys, relatives, friends, or co-workers of the mediator may present a conflict of interest. It is the policy of the Court to avoid conflicts or the appearance of a conflict of interest. Therefore, in these cases, parties may be referred to a different mediator unless both parties agree to waive any objection.
If parties agree to waive the conflict of interest objection, mediators will mediate; however, they will not make recommendations in these situations. A mediator will not handle a case in which they perceive that a serious conflict of interest exists.