Attorney-Assisted Divorce Mediation in California: What It Is and How It Works

Attorney-assisted divorce mediation is mediation in which a neutral mediator helps you and your spouse talk through your divorce and reach an agreement you both accept, while one or both of you also has a separate lawyer who advises only that spouse. The mediator decides nothing. The lawyers advise. You and your spouse make the decisions.

Most people facing this question have already decided they would like to settle their divorce by agreement, and then a worry arrives: "Am I giving up legal advice by mediating?" Sometimes one spouse wants a lawyer in the picture and the other fears that will turn a calm process into a court fight. Sometimes both spouses simply want to know what a lawyer would actually do in the room. This page explains how the roles fit together under California law, for couples in San Diego County and for couples anywhere in California who mediate online.

What Attorney-Assisted Mediation Means in a California Divorce

California Evidence Code section 1115(a) defines mediation as "a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement." Put plainly, a mediator is a neutral person who helps both spouses communicate so they can reach an agreement they both accept. Section 1115(b) calls the mediator "a neutral person who conducts a mediation."

That neutrality is the heart of the process. A mediator does not represent either spouse, does not advocate for either spouse, and is not a judge. Nothing gets decided for you. If you and your spouse do not agree on a term, it is not settled.

"Attorney-assisted" describes what sits alongside that neutral process. Either spouse may hire a lawyer of their own. That lawyer advises the spouse who hired them, explains how California law treats a proposal, and helps that spouse understand what they are being asked to sign. The lawyer is not the mediator's lawyer and not the other spouse's lawyer.

Having an attorney is a choice, not a requirement. California law does not require spouses to bring lawyers into divorce mediation, and it does not bar them either. Some couples mediate with no lawyers at all. Some have one spouse with a lawyer and one without. Some have two lawyers advising in the background. The structure is something you and your spouse can talk through openly, and the overview of the San Diego divorce mediation process walks through how mediation moves from first conversation to written agreement.

What a Lawyer Does — and Does Not Do — in Mediation

An attorney retained by one spouse represents that spouse only. That single rule shapes everything else about the lawyer's role in mediation.

Before a client agrees to mediate, California sets a specific duty for that lawyer, except in a class or representative action, where section 1129 does not apply. Under Evidence Code section 1129(a), an attorney representing a client in a mediation or mediation consultation must, as soon as reasonably possible before the client agrees to participate, give the client a printed disclosure describing mediation's confidentiality restrictions and get the client's signed acknowledgment that they have read and understand them. If the attorney is retained after the client has already agreed to mediate, section 1129(b) requires the same disclosure as soon as reasonably possible after the attorney is retained. The disclosure must be printed in the client's preferred language in at least 12-point font, on a single page that is not attached to any other document given to the client, and must include the names of the attorney and the client and be signed and dated by both (section 1129(c)).

Beyond that duty, the lawyer's work in mediation is advisory. Common tasks include:

• reviewing a draft agreement before the spouse signs it
• explaining what a proposed term means under California law
• walking through the financial disclosure obligations described below
• helping the spouse think about questions to raise in the next session

Some lawyers attend mediation sessions with their clients. Others stay in the background and review drafts between sessions. Either arrangement can work, and spouses can set it up differently depending on the issues and what each of them is comfortable with.

What the lawyer does not do is just as important. The lawyer does not run the mediation, does not take over the conversation from the spouses, and does not decide anything for anyone.

You may also come across the term "attorney-mediator," which the site's guide to attorney-mediators explains. Either way, each spouse who wants personal legal advice looks to their own attorney for it, not to the mediator.

Mediation Confidentiality Under California Law

Confidentiality is often the first thing a lawyer explains, and it is why section 1129 requires that printed disclosure. Under Evidence Code section 1119, except as the mediation chapter otherwise provides, evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to a mediation or mediation consultation is not admissible or subject to discovery in a civil action or other noncriminal proceeding where testimony can be compelled. The same protection covers writings prepared for the mediation. Section 1119(c) adds that "all communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential."

Section 1115(c) defines a mediation consultation as "a communication between a person and a mediator for the purpose of initiating, considering, or reconvening a mediation or retaining the mediator."

Confidentiality is broad, but it is not absolute. Section 1122 lets mediation communications be disclosed when everyone who participated expressly agrees, along with the other situations that section lists. Section 1123 addresses the agreement itself. A written settlement agreement prepared in the course of, or pursuant to, a mediation, and signed by the settling parties, is not protected by the mediation chapter if any of these is true:

1. The agreement says it is admissible or subject to disclosure, or words to that effect.
2. The agreement says it is enforceable or binding, or words to that effect.
3. All parties expressly agree, in writing or orally under section 1118, to its disclosure.
4. The agreement is used to show fraud, duress or illegality relevant to an issue in dispute.

One more boundary matters for parents. Evidence Code section 1117(b) says the mediation chapter does not apply to the court's child custody mediation under Family Code sections 3160 and following. Court custody mediation has its own confidentiality rule, discussed below.

Financial Disclosure: What Mediation Cannot Skip

It can feel like mediation should mean less paperwork, and in some ways the process may feel less formal. The duty of financial disclosure, though, stays fully in place. Mediating does not let you and your spouse skip, shorten or informally replace the declarations of disclosure that the Family Code requires.

The preliminary declaration of disclosure. Under Family Code section 2104(f), the petitioner serves the preliminary declaration of disclosure with the petition or within 60 days of filing it, and the respondent serves it with the response or within 60 days of filing the response, unless the parties extend that time by written agreement or the court extends it by order. When the petitioner served the summons and petition by publication or posting under a court order and the respondent files a response before a default judgment is entered, the petitioner has 30 days from the filing of that response. The declaration is signed under penalty of perjury and, under section 2104(a), includes the tax returns the declarant filed in the two years before serving it.

The final declaration of disclosure. Under Family Code section 2105(a), except by court order for good cause, each spouse serves a final declaration of disclosure and a current income and expense declaration before or at the time the spouses enter into an agreement resolving property or support issues other than temporary support, or, if the case goes to trial, no later than 45 days before the first assigned trial date, unless the parties mutually waive the final declaration.

Waiving the final declaration. Under section 2105(d), the spouses may stipulate to a mutual waiver of the final declaration, executed under penalty of perjury in open court or by separate stipulation, and the waiver must include the representations that section lists, including that both spouses have completed and exchanged their preliminary declarations and current income and expense declarations. A waiver is mutual. One spouse cannot waive it alone.

This is one place a spouse's own lawyer often helps, checking that the disclosures are complete before anyone signs. Perjury on a declaration may be grounds for setting aside the judgment or part of it (sections 2104(a) and 2105(a)). The guide to property division mediation explains how these disclosures feed the conversation about dividing assets and debts.

Child Custody, Support, and What the Court Still Decides

Parents often hope mediation means the two of them can settle everything about their children privately. You can reach agreements, but the court still has a role.

Child support. Under Family Code section 4065(a), unless prohibited by federal law, parents may agree on a child support amount, but the agreement is subject to the court's approval. The court will not approve an agreed amount below the guideline formula unless the parents declare all of the following: they are fully informed of their rights concerning child support; the order is being agreed to without coercion or duress; the agreement is in the best interests of the children; the children's needs will be adequately met by the agreed amount; and the right to support has not been assigned to the county and no public assistance application is pending. More detail is in the guide to child support mediation.

Court custody mediation. Not all family law mediation is voluntary. Under Family Code section 3170(a), when a petition or other request for a custody or visitation order shows that custody, visitation or both are contested, the court must set the contested issues for mediation. In San Diego County, the Superior Court of California, County of San Diego handles that through child custody recommending counseling with the court's Family Court Services (Family Code sections 3170 and 3183).

Under Family Code section 3183(a), except as provided in section 3188, the court's mediator may, consistent with local court rules, submit a recommendation to the court about custody or visitation if the mediator first gives it in writing to the parties and their attorneys before the hearing. A mediator with that authority is called a child custody recommending counselor; Family Court Services calls this person the Family Court Counselor. Family Court Services explains that if no agreement is reached, the counselor makes a recommendation and the court hearing proceeds. The judge decides.

Under Family Code section 3177, these court proceedings are held in private and are confidential; as explained above, the mediation confidentiality chapter, including Evidence Code sections 1119 and 1123, does not apply to them (Evidence Code section 1117(b)). Under section 3170(b), domestic violence cases are handled by Family Court Services in accordance with a separate written protocol approved by the Judicial Council.

Private divorce mediation, the kind Simple Divorce Mediation offers in San Diego County and online across California, is a separate process with no connection to the court or Family Court Services. The page on child custody mediation compares the two in more depth.

When Mediation May Not Be the Right Path

If you are in immediate danger, call 911.

Mediation may not be right for every couple. It depends on both spouses being able to speak freely and agree without pressure. Where there has been domestic violence, coercion or a protective order, safety comes first, and mediating face to face or online with the other spouse is not something to be pushed toward. A person in that situation is never obligated to sit across from someone they fear in order to settle a divorce.

Other concerns also matter, such as one spouse believing the other is hiding money or making decisions under heavy pressure. The page on when mediation may not fit covers these situations more fully.

For couples who can talk safely and honestly, mediation is one path among several. It may be faster, less expensive or less stressful than going to court, depending on the couple and the issues, but no one can promise that in advance.

If You'd Like to Talk Through How Attorneys Could Fit In

Deciding whether one or both of you will have a lawyer, and what that lawyer will do, shapes how the rest of your mediation unfolds. A conversation with the practice can cover how the mediator's neutral role works, how outside counsel can review drafts and disclosures, and how disclosure rules and timelines generally work in the mediation process. The practice does not take either spouse's side, and it speaks with you as a couple or with one spouse in the same even-handed way. To talk through how attorney-assisted mediation could work for you and your spouse, call Simple Divorce Mediation at 858-330-1378 for a joint mediation consultation.

About this article. Reviewed by Amy J. Lass, CA Bar No. 246779. Last updated 2026-10-08.