Family Court Services Mediation

What is Mediation?

Mediation is a "fluid and "flexible" process. There is no "one way" to mediate. Mediation requires the mediator to remain neutral while assisting the parties in reaching their own decisions, thus giving the parties both the control and the responsibility for determining their own solutions.

Mediation is not arbitration. Arbitration requires the arbitrator to listen to each party's position and to form an opinion about how the issues in the dissolution action will be resolved. In essence, the arbitrator becomes a "trier of fact" who decides the issues for the parties. When a client(s) meet with a mediator, the mediator will explain the difference between mediation and arbitration, so that the parties are informed from the beginning about the mediator's role and their roles during the mediation process. The mediator will then require that the parties give their commitment to the mediation process. This commitment can be as simple as having the parties agree that they are philosophically predisposed to mediate their dissolution, or as complex as entering into a written pledge to mediate. Each party will be required to sign a mediation agreement outlining the duties and responsibilities of the attorney and the parties. The attorney will assist the parties in defining the legal issues and/or explore any underlying equitable issues. Some examples are: valuing the community and separate property assets; seeing if "tracing" is an issue; deciding if any assets need to be appraised; accounting for community and separate debts or Epstein Credits; seeing if a custody and visitation order is needed; ascertaining the spousal or child support orders; deciding if there should be an unequal division of a negative estate; or seeing if the parties should consider bankruptcy. The issues could be as general as identifying areas of disagreement or agreement. The parties will be given a Schedule of Assets and Debts, which needs to be completed and returned to the mediator. If independent experts are required, the mediator will assist in obtaining same to do appraisals of such things as the family home, other real estate, or a business.

The mediator's role during the negotiation process between the parties is to facilitate ongoing negotiations between the parties, using certain mediation skills such as active listening, which assists the parties in hearing each other; reframing issues, which may have changed during the negotiations from those first stated; helping the parties break through impasses; and exploring whether the law, after it is explained to the parties, should be set aside for the parties' own equitable considerations. The mediator will also assist the parties in attaining their projected goals as realistically as possible by setting the stage for an open forum. The party's position can be stated without fear of reprisals if this matter is tried at a later date. The parties understand that all the statements made during mediation are protected from discovery or disclosure at trial per California Code of Civil Procedure 1775.10 and 1775.12

Parents can make the best decisions about a parenting plan for their children. The Mediation Conference) which is held in Family Court Services for the Superior Court of California, County of San Diego, is an opportunity for parents to discuss issues and make decisions which are in the best interest of their children. This is an alternative to an expensive and adversarial court battle.

Often, when people get into a courtroom, they let their bitterness and hospitality take over. When people are in such a setting, they may lock themselves into positions which they later regret. Mediation offers an opportunity to set aside these feelings in order to minimize the traumatic effect of the divorce on those who matter most: your children.

The focus of mediation will be on developing agreements which spell out when children are to be with each parent, and specifies other parental responsibilities. Family Court Services Counselors are impartial professionals who help parents reach agreements regarding their children. These agreements will be used as a parenting plan which the Court will consider in making orders related to your involvement with your children.

To encourage an impartial atmosphere, the 2i papers accepted by the counselor, other than the Mediation Data Sheet (a copy of which is attached for your reference), are declarations which have been served on the other party at least two court days prior to mediation, or five court clays if they are served by mail. A proof of service is required if papers are to be accepted.

Telephone calls to a counselor after the mediation will not be accepted unless the counselor has requested specific information. All information which you want to relay to the counselor should be made available in the mediation session. The counselor may make follow-up calls to gather additional information.

The counselor will notify the court of areas of agreement. If agreement is not reached the counselor will make recommendations to the court as to what is believed to be in the best interest of the children. Public policy in California is to assure children frequent and continuing contact with parents and to encourage parents to share the benefits and obligations of child rearing.

What will happen during mediation?

At the downtown Family Court Services and at the El Cajon Court, you will attend a brief orientation before seeing a counselor. Pre-conference orientations are not held at the Vista Court. The mediation conference will last 1.5 to 2 hours The Mediation Data Sheet (attached) will be reviewed. You will be asked about your home, relationships and other aspects of your life related to being a parent. If more information is needed, the Judge may refer you back to this office for extended mediation or investigation. A charge of $50.00 per hour may be made for
this additional mediation or investigation.

What are the limitations of mediation?

Mediation does NOT deal with issues related to money, child or spousal support or property issues. These should be discussed with your attorney.

Do NOT bring your children with you for the mediation appointment unless ordered to do so by the court. If an interview with the children is necessary, arrangements will be made for this at a later time.

Family Court Services cannot monitor nor enforce Court Orders. Lf parties do not comply with orders of the court, legal action may be required. For additional information, contact an attorney, the District Attorney, or the Office of the Family Court Clerk.

Are both parties always seen together in the mediation conference?

Not always. Both parties must be available to participate in the mediation. Arrangements can be made for a telephone conference if one party is out of the county. The parties will be seen separately, if there is a history of abuse or violence, and you request separate sessions.

How can I obtain additional information or get answers to questions?

Every Thursday at 5:30 a FREE group information program is held in the lobby of the downtown San Diego Family Court. No one is admitted to the building after 5:20 p.m. A Family Court counselor and an attorney are available to answer questions. Anyone can attend.