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Mediation & Arbitration

Attorneys guiding clients through mediation

Arbitration and mediation are two common forms of alternative dispute resolution (ADR). Both can help resolve legal disputes while saving time, money, and frustration by avoiding public court proceedings. However, they differ in important ways.

Mediation is frequently paired with our child custody, visitation, and order modification strategies so families can align parenting plans and enforcement.

Mediation

Mediation is a non-adversarial alternative to litigation. It is widely accepted as an effective way to resolve disputes in civil and family law cases. This method is particularly useful in family law because it allows parents to make their own decisions about their children and family, rather than having a judge who has never met them decide.

Mandatory Mediation in Child Custody and Visitation Cases

When parents cannot agree on a custody or visitation arrangement, mediation is mandatory under California law (California Family Code §3170). The court must set a mediation session before holding a custody or visitation hearing. This process is designed to help parents develop a parenting plan that serves the best interests of their child.

Mediation is court-ordered in these cases. If domestic violence or safety concerns are present, the mediation process may be modified—for example, the mediator must meet separately with the parents or take other protective measures as required by Family Code §3181. Mediation is not skipped altogether.

Mediators

Court-connected mediators (often called child custody recommending counselors in some counties) are professionals trained in family dynamics, child development, conflict resolution, and domestic violence. They may have backgrounds in law, psychology, or social work. The court assigns the mediator, but in private mediation, the parties may select a mediator of their choice.

Process of Mediation

Before mediation, parties may be asked to prepare statements summarizing key facts, goals, and proposals. At the start of the session, the mediator establishes ground rules. Depending on the situation, the mediator may speak with both parties together or separately.

The mediator helps the parents communicate and explore parenting plan options that promote the child's best interests. If the parents reach an agreement, it is written down and can become a court order once signed by the judge.

If no agreement is reached, the outcome depends on county rules:

  • In non-recommending counties, the mediator only reports whether an agreement was reached.
  • In recommending counties, the mediator (called a "child custody recommending counselor") may submit a written recommendation to the judge under Family Code §3183 and Rule of Court 5.210.

Confidentiality

Mediation discussions are confidential under Family Code §3177. However, when the mediator is authorized to make recommendations, confidentiality is limited, and parties must be notified in advance (Rule of Court 5.210(d)(1)(G)). Exceptions also apply if a mediator learns of child abuse or threats of harm.

Role of the Mediator

The mediator is a neutral third party who helps guide parents toward a voluntary agreement. The mediator does not represent either parent and cannot impose an order. Their role is to facilitate communication and help the parents develop a parenting plan that ensures the child's safety and promotes frequent, continuing contact with both parents when appropriate.

Note: In court-connected mediation, the mediator's authority is limited to custody and visitation issues. Child support, spousal support, and property division are not part of this process, although they can be addressed in private family mediation if both parties agree.

Preparing for Mediation

Parents should take the mediation process seriously, as many cases are resolved at this stage. Preparation may include:

  • Gathering important documents (e.g., school schedules, work calendars).
  • Considering different parenting plan proposals.
  • Preparing emotionally to discuss difficult topics and listen to the other parent's perspective.

Before attending mediation, parents may wish to seek legal advice from a family law attorney to understand the legal implications of possible outcomes. In many counties, parents must also complete a mandatory orientation session or video before mediation (Rule of Court 5.210(e)(2)).

Arbitration

Arbitration is another form of alternative dispute resolution in which an arbitrator—or a panel of arbitrators—decides the outcome instead of a judge. Arbitration is similar to litigation but usually less formal, with limited discovery and quicker results.

Unlike mediation, arbitration involves a third party who renders a decision after hearing both sides. Arbitration is more common in business, employment, and consumer disputes, but it is rarely used in California family law cases involving custody or visitation because those matters must be resolved according to the child's best interests and are subject to court oversight.

Mandatory Arbitration

Many employment and consumer contracts contain mandatory arbitration clauses. However, under California law, certain claims—such as workers' compensation and some statutory employment rights—cannot be forced into arbitration. Courts may also strike down arbitration clauses that are procedurally or substantively unconscionable (for example, one-sided agreements that favor the stronger party).

Voluntary Arbitration

Parties may voluntarily agree to submit a dispute to arbitration instead of going to court. This is sometimes used in divorce cases for property division or support issues, but it is not permitted for child custody or visitation disputes without court approval.

Binding vs. Nonbinding Arbitration

Arbitration may be binding or nonbinding:

  • Binding arbitration: The arbitrator's decision is final and can only be challenged under limited circumstances (e.g., fraud or exceeding authority).
  • Nonbinding arbitration: Either party may reject the decision and proceed to trial. Even so, it can help parties understand the strengths and weaknesses of their case.

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Mediation & Arbitration FAQs

Yes. Family Code Section 3170 requires parents who disagree about custody or visitation to attend mediation (often called child custody recommending counseling) before the court will conduct a hearing.

Mediation still occurs but under strict safety protocols. The mediator meets separately with each parent, and additional security measures or virtual sessions may be used. A judge may waive mediation only in exceptional circumstances.

Court-connected mediation focuses on custody and visitation—parenting schedules and decision-making. Other topics such as child support, spousal support, or property division are handled separately or through private mediation if both parents agree.

In court-connected cases, mediators (child custody recommending counselors) are court-appointed professionals trained in family conflict resolution and child welfare. In private mediation, the parents jointly select a mediator of their choice.

In recommending counties, mediators may submit written recommendations to the judge if parents do not reach agreement (Family Code Section 3183). In non-recommending counties, mediators simply report whether agreement was achieved. Check with your county’s Family Court Services office to confirm the practice in your area.

Mediation discussions are generally confidential under Family Code Section 3177, but there are exceptions. Mediators may disclose information when permitted to make recommendations or if they learn of child abuse or threats of harm.

In most court-connected mediations, attorneys do not participate directly, though parents can consult counsel before or after sessions. In private mediation, attorney participation depends on the parties’ agreement and the mediator’s rules.

Sessions typically last one to two hours. Some disputes resolve in a single meeting, while others require multiple sessions depending on the level of conflict and complexity.

If the parents reach an agreement, it is drafted, submitted to the judge, and becomes a court order once signed. If no agreement is reached, the case proceeds to a hearing; in recommending counties the mediator’s written recommendations go to the judge.

Generally, no. Custody and visitation must be decided by the court based on the child’s best interests. Arbitration is more commonly used for property or financial disputes and requires court approval when it touches on custody issues.

Mediation helps parents reach their own voluntary agreement; the mediator does not decide the outcome. Arbitration involves a neutral arbitrator who hears evidence and issues a decision—typically binding—after the hearing.

You can present your position to the judge at the custody hearing. The court considers the mediator’s recommendation but is not obligated to adopt it.