Mediation Proceedings in Child Custody Cases

Division 8, Part 2, Chapter 1, Article 3 of the Family Code deals with mediation proceedings regarding custody and visitation issues for the custody of minor children.

Section 3175 provides that, if a matter is set for mediation pursuant to this chapter, the mediation must be be set before or concurrent with the setting of the matter for hearing.

Section 3176 specifies that notice of mediation and of any hearing to be held pursuant to this chapter must be given to two specified persons. Notice must meet specified requirements.

Section 3177 provides that mediation proceedings pursuant to this chapter must be held in private and be confidential. All communications, verbal or written, from the parties to the mediator made in the proceeding are official information.

Section 3178 explains that an agreement reached by the parties as a result of mediation must be limited in two specified instances.

Section 3179 specifies that a custody or visitation agreement reached as a result of mediation may be modified at any time at the discretion of the court.

Section 3180 imposes on the mediator a duty to assess the needs and interests of the child involved in the controversy, and is entitled to interview the child when the mediator considers the interview appropriate or necessary.

Section 3181 states that, in a proceeding in which mediation is required, where there has been a history of domestic violence between the parties or where a protective order is in effect, at the request of the party alleging domestic violence in a written declaration under penalty of perjury or protected by the order, the mediator appointed pursuant to this chapter is required to meet with the parties separately and at separate times.

Section 3182 gives the mediator authority to exclude counsel from participation in the mediation proceedings pursuant to this chapter if, in the mediator’s discretion, exclusion of counsel is appropriate or necessary.

Section 3183 allows the mediator to submit, consistent with local court rules, a recommendation to the court as to the custody of or visitation with the child, if the mediator has first provided the parties and their attorneys, including counsel for any minor children, with the recommendations in writing in advance of the hearing.

The court is required to make an inquiry at the hearing as to whether the parties and their attorneys have received the recommendations in writing. If the parties have not reached agreement as a result of the mediation proceedings, the mediator may recommend to the court that an investigation be conducted or that other services be offered to assist the parties to effect a resolution of the controversy before a hearing on the issues.

Section 3184 specifies that nothing in this chapter prohibits the mediator from recommending to the court that counsel be appointed to represent the minor child. In making this recommendation, the mediator is required to inform the court of the reasons why it would be in the best interest of the minor child to have counsel appointed.

Section 3185 provides that, if issues that may be resolved are not resolved by an agreement of all the parties who participate in mediation, the mediator has the duty to inform the court in writing and the court shall set the matter for hearing on the unresolved issues.

Section 3186 states that an agreement reached by the parties as a result of mediation is to be reported to counsel for the parties by the mediator on the day set for mediation or as soon thereafter as practical, but before the agreement is reported to the court. An agreement may not be confirmed or otherwise incorporated in an order unless each party, in person or by counsel of record, has affirmed and assented to the agreement in open court or by written stipulation.

Section 3188 allows any court selected by the Judicial Council to voluntarily adopt a confidential mediation program that provides for five specified conditions. This section applies only in four or more superior courts selected by the Judicial Council that currently allow a mediator to make custody recommendations to the court and have more than 1,000 family law case filings per year.