Many California couples find that they can lower the cost and stress of divorce by using mediation to end their marriage. In divorce mediation, a trained, neutral professional meets with both spouses (either in person or remotely in online mediation) to help them negotiate and compromise on the important issues in their divorce. When couples can reach a marital settlement agreement through mediation, they can avoid the expense and time of going to trial.
You and your spouse may use mediation at any point in the divorce process—even after the divorce (known as "dissolution of marriage" in California) is final.
If you want to get an uncontested divorce in California, but you're having trouble agreeing with your spouse on one or more issues, a mediator might be able to help you through the sticking points. That way, you might be able to complete the divorce relatively quickly, without hiring lawyers.
After couples have filed for divorce—even if they've hired lawyers—they can turn to mediation as their case proceeds. For instance, one spouse might become open to mediation only after the "discovery" process (when spouses may require one another to provide information and documents) has revealed a full picture of the couple's finances, including any hidden assets.
Also, you'll have to start legal divorce proceedings if you want to make use of California's free court-connected mediation for custody and visitation issues (more on that below).
As anyone who's been divorced can tell you, disputes with an ex don't necessarily end once the divorce is final—particularly when you're co-parenting kids. Post-divorce mediation can help you work out disagreements when one of you wants to change something in the settlement agreement or final dissolution judgment—such as your parenting arrangement or the amount of child or spousal support.
And if you or your ex files a request to modify a custody or visitation order, the dispute will be covered by California's mandatory mediation through the courts (discussed below).
The cost of divorce mediation depends on a number of factors. The most important variable is the type of mediation you use:
For private mediation, typical total bills range from $3,000 to $8,000, whether you use a mediation service or an individual mediator. What you end up paying will depend on a number of things, including the mediator's rate and professional background, the number and complexity of the issues you have to work out in mediation, and both spouses' willingness to engage in the process and make compromises.
When you're required to participate in mediation of custody and visitation issues in California, you can get this mediation free from your local court—usually through Family Court Services (more on that below). You might be able to get free or low-cost mediation of other issues through a nonprofit community mediation organization, if that's available where you live.
Despite the cost of private mediation, it will almost always be a lot less expensive than going to trial if it leads to a settlement agreement. (Learn how contested issues affect the cost of divorce.)
Under California law, a judge must order couples to mediate child custody issues if they have minor children but haven't been able to agree on a parenting plan by the time they've filed for divorce. The same requirement applies when:
An order related to child custody could be anything ranging from an initial custody or visitation order (even if the parents aren't married) to an order to modify custody after a divorce is final (for instance, when one parent wants to move away with the child)
California courts have held that parents who don't participate in court-ordered mediation lose the right to challenge the court's custody orders. At the same time, parents must receive a reasonable amount of time to prepare for mediation, so that they can participate in a meaningful way. Any parent also has the right to take part in mediation of a grandparent's or stepparent's visitation request, but a parent who doesn't participate may not object to a settlement reached during that mediation. (Cal. Fam. Code §§ 3170, 3171, 3173; In re Marriage of Economou, 224 Cal.App.3d 1466 (Cal. Ct. App. 1990); In re Marriage of McGinnis, 7 Cal.App.4th 473 (Cal. Ct. App. 1992).)
Some of California's rules and procedures for mediation in California apply to both private mediation and court-connected mediation, while other rules are specific to mediation with Family Court Services. As discussed below, you can always choose private mediation, even if the court has ordered you to mediate custody disputes.
The specific procedures for court-connected mediation vary from county to county, including the length of the mediation (typically about two hours). You'll learn the details during orientation when you start the process.
One of the biggest differences between counties is the extent of confidentiality in court-connected mediation. As a general rule, any written or oral communication with a mediator is private and confidential. In some California counties, however, court-connected mediators may submit reports and recommendations to the court if the parents don't reach an agreement during the mediation. In these counties, the mediation process is known as "child custody recommending counseling," even though it works like mediation, not like a counseling session.
In other counties with confidential mediation programs, the mediators may tell the court only whether the parents reached a full or partial agreement, and the parents must consent in writing before the mediators are allowed even to give the court a description of any issues that are still disputed. Although these confidential mediators may recommend that the judge appoint a lawyer to represent the child, they may not give their reasons for that recommendation. (Cal. Fam. Code §§ 3177, 3183, 3188 (2021).)
General rules that apply to all court-connected mediation in California include the following.
(Cal. Fam. Code §§ 3160, 3183; Cal. Rules of Ct., rules 3.857, 5.210 (2021).)
If you're having trouble agreeing with your spouse about any issues in your divorce, you can get help from a private mediator. There are some significant differences in how private mediation works, compared to mediation through the California courts. One of those is the cost (as discussed above). Other differences include:
Because court-connected mediation is free in California, it might seem like a no-brainer to take advantage of it. However, you do have the right to choose private mediation even when a judge has ordered you to custody mediation. For some couples who can afford it, this option might make sense. For example:
California's requirement for mediation of custody issues doesn't make an exception for cases involving abuse, but the state does have special rules for how court-ordered mediation should take place whenever there's been a history of domestic violence in the relationship. When the victim requests it, the mediator must meet with the spouses separately and at separate times. Domestic violence victims also have the right to bring a support person with them to mediation sessions (although the mediator may exclude a support person who's disrupting the process). As part of intake procedures, Family Court Services staff will make every effort to identify cases involving domestic violence and to develop a safety plan with the victim. (Cal. Fam. Code §§ 3181, 3182, 6303; Cal. Rules of Ct., rule 5.215 (2021).)
Other than when the court has ordered parents to mediate custody issues, divorce mediation generally isn't recommended when there is ongoing domestic violence in a marriage. In fact, private mediators on some court panels won't accept cases where there has been a restraining or protective order due to domestic violence, or where there has been child abuse or neglect.
Even when you aren't currently experiencing domestic violence, mediation might not be the best option when:
If you decide to go ahead with voluntary mediation despite an imbalance of power or a high-conflict divorce, you can ask to meet with the mediator separately from your spouse, even if you're meeting remotely. This would cost more, because it takes more of the mediator's time. But it could still save money on attorney's fees if it prevents the need for a trial.
If something comes up in mediation that raises a reasonable suspicion of child abuse, some mediators (depending on their professional status) might be required under California law to report those concerns to Child Protective Services or the court, despite the general confidentiality rule for mediation. (Cal. Penal Code §§ 11165.7, 11166 (2021).)
Once you and your spouse have reached an agreement in mediation, the mediator may help you prepare a written settlement agreement. You will then file the agreement with the court, along with the other forms required to finalize your divorce in California. (Some mediation services or online divorce services will help with filing the divorce papers.)
The judge will review your settlement agreement before approving it. If there's a problem—for instance, if your property division seems unfair or if your custody agreement doesn't appear to serve the children's best interests—the judge might order you to appear at a hearing. If there's a minor mistake, the judge might simply ask you to fix it.
In most cases, however, the judge will approve a mediated agreement and incorporate it in the final "judgment of dissolution of marriage."
Even if you're required under California law to participate in mediation of custody and visitation issues, there's no requirement that you actually reach an agreement during that mediation. However, you may need to go through some extra steps after unsuccessful court-ordered custody mediation, depending on your county. For example:
(Cal. Fam. Code §§ 3183, 3188 (2021).)
If private or court-connected mediation isn't successful—or is only partly successful, leading to an agreement on some issues but not all—a judge will have to conduct a hearing and make a decision on any remaining disputed issues, unless you and your spouse manage to settle those issues before the hearing (typically through your lawyers).