In most California counties, divorcing parties must attend mandatory mediation with a social worker or other mental health professional before a Judge will make a determination establishing or modifying custody and visitation orders. Absent an agreement to hire a private mediator of their choosing, couples are assigned a county-funded mediator who works for the court. Especially in counties where the mediators recommend a child custody and visitation plan to the Judge, it is imperative to make a good impression in mediation and concisely convey your point of view. Here are some top tips to make the most out of your mediated session:

1. Don’t assume the mediator knows anything about you or your case.

Mediators see several couples a day and often don’t have time to review the filed paperwork before meeting with you. Do your best to provide as much context as possible and continually gauge their understanding of the facts.

2. Don’t interrupt your ex.

It sounds obvious, but the mediator will immediately size up both parties. Do not give them any reason to view you as overly dominant or the less able communicator, especially if the other side is complaining about “your temper” or “your lack of co-parenting skills”.

3. Bring a notepad.

The benefits are several-fold: if you’re tempted to interrupt your ex because they are telling lies, resist interrupting and instead write your responses on your notepad. When it’s your turn to talk, ask if you can address a few inaccuracies stated by the other side. Further, it is a place to organize your thoughts in case you get nervous and forget important topics. Do not write a speech, but rather buzz words to remind you of talking points.

4. Don’t agree to anything you’re not completely comfortable with.

In recommending counties, where the mediator reports the fruits of mediation to the Judge, mediators are first trying to facilitate agreements. If agreements are reached and reported to the Judge, it is virtually impossible to retract the agreement at the subsequent review hearing. Alternatively, if the mediator recommends a course of action, you can argue why that recommendation is sufficient or not. Courts do not want to re-hash reported agreements and will entertain very little discussion about back-tracking.

5. Speak up.

If you feel that your ex is dominating the discussion and the mediator isn’t doing the best job at guiding the session, you may have to fight for an opportunity to be heard. Do not be aggressive in this approach, but politely express that you feel you haven’t had the chance to express your point, and ask to say a few things.

6. Don’t focus the mediation session on the failed relationship.

This is not a therapy session. When you try to dominate the discussion with criticisms of your ex that are unrelated to their ability to parent, the mediator will likely believe you can’t separate the children’s best interests from your own.


Success in the room with the mediator is often crucial to the resulting recommendations. Take time to prepare yourself, become familiar with the process, and ask your attorney for comprehensive guidance on presenting information most helpful to the mediator. Read more about common missteps during child custody proceedings.


ABOUT THE AUTHOR: Jenny Bain is an attorney with FORESTER PURCELL STOWELL PC, based in Folsom, California. She can be reached at or 916 293 4000. This information is general in nature and should not be construed as legal advice.

Sign up to receive legal updates and announcements from FPS and follow us on Twitter @law_fps 

Share The Story