Court custody mediation or private mediation: what actually differs.
In California, both are called mediation, but they differ in scope, in who runs them, and in who hears what you say. Knowing those differences before your first appointment changes how you prepare for it.
Schedule a Private ConsultationWhen parents file in a California court and custody or visitation is contested, the court must send them to its own mediation. That session is limited to the parenting plan, custody, and visitation, and in counties whose local rules allow it, the court's mediator can give the judge a written recommendation if you do not agree. Private mediation can address parenting and money together, and the mediator does not report to the judge. Using one does not always excuse you from the other.
Parents often hear "you'll have to go to mediation" from a court clerk and assume it is the same process a private mediator offers. It is not. This page sets out the differences in plain terms, using the California statutes that create them.
What court custody mediation is
Family Code section 3170 requires the court to set contested custody and visitation issues for mediation when they appear on the face of a petition or other filing. The session is run through the superior court, usually by its Family Court Services office, and the mediator must meet the qualifications in Family Code section 1815: a master's degree in psychology, social work, marriage and family counseling, or a related behavioral science, plus at least two years of counseling or psychotherapy experience.
The scope is narrow by law. Under Family Code section 3178, an agreement reached in this mediation is limited to parenting plans, custody, and visitation. Child support, spousal support, the house, retirement accounts, and debts are not on the table, even when they are the real source of the conflict.
The difference most parents miss: who hears what you say
Family Code section 3177 makes court custody mediation private and confidential. Section 3183 then allows the mediator, consistent with local court rules, to submit a recommendation on custody and visitation to the court, provided the parties receive it in writing before the hearing. Counties that permit this are often described as recommending counties, and the session is sometimes called child custody recommending counseling.
Evidence Code section 1117 also excludes court custody mediation from the Evidence Code's general mediation confidentiality chapter. The protection in Evidence Code section 1119, which covers private mediation, is not the rule that governs this room.
The practical consequence: in a recommending county, the session is partly an assessment. How you describe the other parent, and how flexible you appear, can shape what the judge reads. Before your appointment, ask your court's Family Court Services office which model it uses.
Private mediation, by contrast
- It can cover parenting, support, and property in one set of conversations, which matters when the schedule and the budget depend on each other.
- The mediator does not make recommendations to the judge, and statements made for the mediation are protected under Evidence Code section 1119.
- You choose the mediator, the pace, and the number of sessions. California has no general license for private mediators, so ask about training and background directly.
- It is voluntary for both parents. That is its strength and, as the next section explains, its limit.
Where private mediation does not replace the court step
Private mediation only removes the court's mediation if it produces a parenting agreement that is filed with the court as a stipulation. Section 3170 sends the issues that are still contested to the court's mediator. If you settled the school-year schedule privately but not the holidays, the holidays can still go to Family Court Services.
There are also situations where the court process is the better fit:
- One parent will not participate voluntarily. A private mediator cannot require anyone to attend. The court can.
- You want a neutral professional's view to reach the judge. In a recommending county, that is exactly what the court process provides, and private mediation does not.
- The only dispute is the parenting schedule. If money and property are already settled, the court's narrower scope may be all you need.
For many families the sequence is what matters. Settling parenting and financial issues privately, then filing the agreement, means the court has nothing contested to send to mediation. Where safety is a concern, read when family mediation is the wrong choice before choosing either path.
Questions about court and private custody mediation.
Partly. Family Code section 3177 makes court custody mediation private and confidential, but section 3183 allows the mediator, where local court rules permit, to give the judge a written recommendation on custody and visitation. Evidence Code section 1117 also excludes court custody mediation from the Evidence Code's general mediation confidentiality chapter. Ask your county's Family Court Services office which model it uses.
Only if custody or visitation is still contested when you file. Under Family Code section 3170, the court sets the contested issues for mediation. A complete parenting agreement filed with the court as a stipulation leaves nothing contested to send. Any issue you did not settle privately can still go to the court's mediator.
Settle the parenting plan before the court has to.
The consultation is confidential and carries no obligation. Describe where things stand, and you will hear plainly whether private mediation fits your situation.
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