Under the law, mediation is required when custody or visitation of a minor is contested. Said mediation must occur prior to or at the same time as a the setting the matter for a hearing. How long the mediation lasts is up to the Court. If the mediation does not resolve the dispute, the trial court may then under the statutory requirement have substantial discretion in determining whether the facts and circumstances allow an order for more mediation.
Mediation of custody has numerous purposes. Among them are 1. The reduction of bitterness between the parties, and 2. To come to an agreement that ensures the minor’s continuing contact and visitation with both parents, in the child’s best interest. Other considerations are the child’s health, safety and welfare; history of abuse by one parent against certain people; and use of alcohol or substances.
The mediator can be a part of the family conciliation Court’s professional staff, probation department or mental health services agency, in addition to attaining certain education requirements in behavioral science regarding marriage and family, and experience in counseling and/or psychotherapy. Courts regulate change of mediators at a local level.
The California Family Code mandates that mediation proceedings be confidential, whether the communication in said proceeding is done in writing or verbally. However, local rules may permit a mediator’s testimony regarding the mediation. That being said, every family law attorney in such a proceeding should always request that psychological evaluations of a child or recommendations pertaining to custody/visitation be placed in the court’s confidential file. Depending on the county, the communications made in mediation may be held in confidence from the Court as well.
Although mediators have the authority to exclude attorneys from participating in mediation proceeding, attorneys meet or confer with the mediator before and after sessions. That is why attorneys are incredibly important during the mediation step in the process.
Mediators have the ability to interview the child subject of a proceeding. Furthermore, mediators must meet with parties separately if one party is alleging domestic violence in a written declaration under penalty of perjury or protected by an order requesting separate meetings. In the case where there is a protective order, a support person must be allowed to accompany the protected party during orientation or mediation sessions. But this support person may be excluded by the mediator if the support person participates, advocates or disrupts in the session.
Depending on the local rules, a mediator makes a recommendation to the court in regards to custody or visitation. A mediator may only make a recommendation to the court if both parties are given the right to examine him or her at a hearing on the recommendation, which yet again, makes the attorney a crucial component of the mediation process. Furthermore, unless the parties agree, a mediator cannot communicate to the court without the parties present, unless the mediator determines it’s for a restraining order to prevent imminent risk to the physical safety of a child or a party.
Mediators are also empowered with making recommendations pertaining to an investigation or services offered to resolve the issue before the hearing, if the parties still have not reached an agreement. This is why it is so crucial to have an attorney who will aggressively advocate on behalf of a client for a resolution where one can be found between the parties, before other steps are taken by the Court or mediator that could hinder a party’s visitation or custody rights.
Patrick Baghdaserians has participated in over 100 family law mediations, serving as both an attorney representing a party, and as a mediator himself. For the past 6 years, he has also been a Pasadena Family Law Courthouse Volunteer mediator. He brings a wealth of experience from numerous perspectives in the mediation process when advocating and guiding his clients through this arena.