In California, mediation is mandatory whenever custody and visitation are at issue, and for good reason – custody mediation can have a very positive, long-term impact on families. See summary of Dr. Robert Emery’s 12-year study on the effects of divorce mediation at http://emeryondivorce.com/divorce_mediation_study.php. On the other hand, some have questioned the fairness of mandatory mediation in custody cases in California. See, e.g., Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545 (1991). Regardless, there is a fairly wide consensus within the field of mediation that the benefits derived from mediation and the fairness of the mediation process itself depend on how the mediation process is being offered.
In light of the mandatory mediation requirement, two types of mediation are offered through the California court system: (1) recommending mediation/counseling; and (2) confidential mediation. Compare Cal. Fam. Code Sections 3183 and 3188. Each County in California may select the type of mediation that parties to a custody dispute must attend.
Under the recommending mediation approach (formally titled “recommending counseling”), the mediator first tries to help the parties reach a consensual agreement. If the parties cannot do so, the mediator then provides the parties and the court with non-confidential recommendations regarding custody and visitation. The parties can agree to adopt the recommendations, or the court may decide to adopt or modify the recommendations after hearing the parties’ arguments for and against adoption. For reasons that are fairly apparent, the non-confidential recommendations can have a significant impact on how parties negotiate and/or how the court rules. One of the advantages of the recommending approach is that the parties have the opportunity to meet with a psychologist or therapist trained to deal with families who can first try to help them in a more consensual process but can then also make a recommending to the court based on his or her professional expertise. One potential disadvantage of the recommendation approach is that parties often approach recommending mediation as a process within which they advocate their position to the mediator rather than try to candidly communicate with one another and problem-solve. As a result, the potential of reaching a consensual agreement is often diminished.
In contrast, under the confidential mediation approach, neither the mediator nor the parties can report the content of the mediation to the court other than reporting any actual agreement reached. This approach allows parties to have more frank conversations with the help of the mediator without worrying about the impact their conversation may have on the outcome of their case. However, unlike the recommending approach, the only immediate, tangible by-product of a confidential mediation is when the parties do in fact reach an agreement. Although confidential mediation may very well pay dividends well beyond an immediate agreement, confidential mediation may be less efficient than recommending mediation, at least in the short-term.
Another way to look at the difference between these two approaches is that under the recommending approach, the goal is dual: (a) to try to help the parties reach their own agreement; but if they cannot agree, then (b) to provide the court with assistance/guidance by way of issuing a recommendation. Under the confidential approach, the only goal is to help the parties reach a consensual agreement via a confidential process.
Many Counties, including Alameda, have adopted the recommending mediation module. Others, like San Francisco County, provide confidential, non-recommending mediation. Contra Costa County has been a recommending mediation County for many years; however, recently the County announced a planned shift to a hybrid confidential/recommending module starting in March 2018. This hybrid approach involves a first tier of confidential mediation, a second tier of fact-gathering conducted by a different mediator, and a third tier of recommending mediation with the same mediator that conducted the second tier fact-gathering. Referrals to tiers two and three will be at the discretion of the Judge presiding over the case. The Contra Costa module, is designed to reap the benefits of confidential mediation and recommending mediation/counseling, but at different stages of the case.
One of the limitations of court-connected mediation services is the court’s lack of resources, which limits the amount of time dedicated to mediation. Parties do have the option to opt out of the court-connected services and stipulate to private mediation. Our office (which practices in Contra Costa and Alameda) often explores with our clients the option of working with a private recommending mediator/counselor or a private confidential mediator. While this service is not free, it does allow for a more thorough and holistic approach to resolving custody and visitation issues and often saves a fair amount in attorney’s fees.
To conclude, parties with disputes over custody need to understand that there are important choices to be made regarding the mediation process (as a stand-alone process or in conjunction with litigation), choices that can significantly impact how custody and visitation is determined. It is very important for attorneys and their clients to have a discussion about these various processes at the onset of the case.