Family Law Mediation FAQs: Choosing the Right Option for Your Family

What is family law mediation?

Family law mediation is an out of court process for creating legally binding agreements led by the parties involved. As the family law mediator, my role is to help you create the agreements that work best for your family. That means that my focus is on helping you to hear and understand what the other party or parties are saying and helping you to identify proposed agreements or areas of agreement. I don’t make decisions for you, the way an arbitrator or judge would. Instead, I give you the legal framework so that you can make an agreement that suits your family.

Do you work with clients who don’t identify as a non-traditional family?

Yes, I work with families of all shapes and sizes, including traditional, nuclear families. I’m happy to work with anyone who wants an out of court resolution.

I specialize in:

• Non-monogamous and poly family law mediation, including mediation for multi-generational and poly households;
• LGBTQ+ family law mediation, whether you are married, Registered Domestic Partners, or have never married or registered your partnership; and
• Neurodivergent family law mediation, including developing parenting plans to meet the needs of neurodivergent children and offering accommodations to my mediation process, such as shorter sessions, step-by-step instructions, and visual mapping. 

What if my spouse or partner doesn’t want to mediate?

An out of court mediation is voluntary – nobody can be forced to mediate an agreement.* If your spouse isn’t interested in mediation, I suggest getting curious. What’s driving your spouse’s concern? Do they feel like they’re not well enough informed about the legal framework to mediate? Are they concerned the mediation will lead to miscommunication? Would they prefer to have someone in the room who can advocate for them? 

Once you understand your spouse’s concern, you may be able to work with them to find a process that works for both of you. For example, someone who would prefer to have an advocate in the room may need a process with more support, such as Collaborative Divorce. 

* Note that in divorce cases involving children, some counties have a mandatory mediation requirement for child custody. This is different from an out of court mediation process.

Can what I say in family law mediation be brought into court?

In California, the law imposes strict protections for folks in mediation. Information shared in mediation, such as the conversations you have, any notes you or the mediator take, any tentative agreements, or any proposals made by any party, are confidential. That means they cannot be admitted as evidence in court. In contrast, court proceedings are a matter of public record. Members of the public can generally attend hearings or request copies of the proceedings.

Confidentiality can be especially important for non-traditional families, especially those involving children or multiple parents. Mediation, particularly with a firm experienced in non-nuclear, queer, and poly families, can give you a venue where you can safely explore alternatives to the traditional legal framework.

Is there anything that isn’t confidential?

There are some important exceptions to the confidentiality protections.

The final agreement that you sign may not be confidential, depending on whether you file it with a court. Generally speaking divorce settlement agreements are filed publicly, but in some counties you can work with your mediator to keep the settlement confidential. Other agreements, like prenuptial agreements or cohabitation agreements, are not filed with the court unless and until one or more parties seeks to enforce the agreement in court.

Any underlying documents used in the mediation, such as bank account statements, are not confidential. Similarly, facts, such as how much time a child spends with each parent or how much money each individual makes are not confidential.  

Information about the mediation that you share with others, including AI, may not be confidential. AI especially is an evolving area of the law. You can make agreements in the mediation process about who you can share information with, such as a therapist or other trusted advisor, and whether and how you will each use AI.

Conversations with my spouse can get heated. Can we still mediate?

Absolutely. A good mediator will help you navigate heated conversations so that you are better able to understand what the other person is asking for. Once you have a shared understanding, it is often easier to find areas of agreement.

In my practice, there are a few ways I work with couples or groups who have concerns about meetings escalating. One is to meet with both parties individually before we meet as a group. This helps give me an overview of the most important goals and concerns for each party, as well as a sense of sensitive areas and triggers. Another is to slow down the conversation. Often, miscommunication happens before we’re even aware that we’ve processed the information. A skilled mediator can help identify the miscommunication in the moment and work with both parties to ensure they have the same understanding. 

Do I need my own attorney for my mediation agreement to be valid?

No. California law presumes that the agreement is valid if each individual signing the agreement is legally capable, understands the agreement, and was not forced or coerced into signing. However, many people think it’s prudent to hire a consulting attorney to review a mediated agreement before you sign it.

A consulting attorney is a unique discipline. Consulting attorneys are often mediators, and that you reached your agreement through negotiation. Your consulting attorney can give you in depth information on how the legal structure relates to your particular situation. A good consulting attorney will also review the agreement with you to 1) confirm that the agreement as written reflects the agreements you made; and 2) explain the places where your agreement differs from the default law.  

Mediation sounds expensive. If my spouse and I can make our own agreements, do we really need a mediator?

Many people are able to mediate a divorce or other agreement without using attorneys or a mediator. The California Courts Self Help Guide can walk you through the steps you need to take for a divorce or other legal proceeding. 

Hiring a mediator makes sense when one or more of the following apply to you:

• There is an imbalance in financial knowledge or income, particularly if one party made more money and managed the family’s finances
• You don’t want to follow the default rules for divorce but would rather make agreements that better reflect your family’s needs
• You have retirement accounts, restricted stock units, income-producing property, own your own business, or otherwise feel that your finances may be complicated
• You consider your family or your relationship to be non-traditional (polyamorous, non-monogamous, unmarried partners, bonus parents) and don’t want the judgment or scrutiny of your private life that might occur in a court proceeding
• Communication with each other can be challenging, and it often feels like you aren’t understood or don’t understand what the other person is asking for
• There has been a history of substance abuse by one or both parties
• Either party would like extra support in creating a container for the discussions

How do I choose a family law mediator, especially for a nontraditional family situation?

Finding the right mediator is important. You want to find someone who has experience working with families like yours, who is knowledgeable about the law, who has time to take your case, and, perhaps most importantly, who feels like the right fit. Many mediators offer a free consultation, where you can ask questions about their experience and practice. The following questions can help you decide if someone is a good fit for you:

• What kind of experience do you have working with families like mine?
• If I hire you, when would we be able to start mediating? How often can we mediate?
• How quickly do you respond to emails?
• What is your mediation process like? Do you have a structure or format you use for all mediations?
• What do you do when someone is at an impasse? When your clients start arguing or yelling at each other?

Ready to take the next step in your divorce journey? Schedule a virtual consultation, email me, or learn more about Collaborative Divorce.