2011: Private Mediation in Paternity, Divorce or Legal Separation in San Diego: Should You Choose Confidential or Non-Confidential Private Mediation?

In San Diego, parties to a legal separation, divorce or paternity have the option, if they agree, to attend private mediation rather than mediation with Family Court Services. Under the San Diego Superior Court Local Rules, there are specific guidelines for private mediation for parents who are married and divorcing or legally separating and parents who are not married in a paternity action. There is no distinction in the procedure for paternity cases, legal separation cases or divorce cases. There are many procedures which are mandatory for private mediation and some are outlined below. One crucial decision, after the decision to attend private mediation is reached, is whether the mediation is non confidential or confidential.

To initiate the private mediation, both parents must agree in a written stipulation. A formal order needs to be prepared which sets forth the scope of the entire mediation including the following: whether the mediation will be non confidential or confidential; who will pay for the private mediation and identifying the mediator chosen by both parties. An order must be obtained from the San Diego Superior Court Judge and provided to the parents, attorneys and mediator.

The private mediator, in order to conduct private mediation, must meet the continuing education requirements, training and qualifications per the Family Law Code. Minimum qualifications include the following: training in domestic violence per Family Law Code Section 1816; knowledge of effect of divorce on children; child development; child abuse; clinical issues relating to the child or children and the effects of domestic violence on children. The private mediator must have a master’s degree is social work, marriage, family and child counseling, psychology or other behavioral sciences which are substantially related to family and marriage interpersonal relationships. In addition, two years of experience in psychotherapy and/or counseling is required. The private mediator must also have knowledge of the California Court system and the family law case procedures as well as a knowledge of resources in the San Diego community that any party can be referred to for assistance. Adult psychology and the psychology of families is also a requirement.

The private mediator, along with the parents and attorneys, will decide how materials, documents and other writings will be presented to the mediator and the procedure for this. Normally, there is a time period and also the requirement that any writings, documents or other materials given to the private mediator must also be served on the opposing side.

If the private mediator is successful in having the parents reach an agreement as to their parenting plan, then a written report with the agreement is prepared and a copy given to the parents and attorneys. This can then be reduced to a stipulation which is filed with the Court and then the agreement becomes a court order. If the mediator is not successful in having the parties reach an agreement, and the mediation was confidential, then the parents will need to either (1) attend Family Court Services or (2) participate in non confidential mediation. If the mediation was non confidential, then the private mediator prepares a written recommendation and gives a copy to both parents and their attorneys at least ten days before the court hearing. Upon following the proper procedure, either parent can ask for the mediator to appear in court and cross examine the mediator as to their reasons for the recommendation.

If you have any questions regarding private mediation whether confidential or non confidential, please feel free to contact us to discuss.