Is Mediation Mandatory in a California Divorce?

No. Mediation is not mandatory for every California divorce. The one place the law requires it is a contested custody or visitation dispute, where the court must send those issues to mediation. Private divorce mediation covering property, support and parenting is voluntary, and neither spouse can make the other take part.

Most people facing this question are at an early, unsettled point. Maybe you and your spouse have agreed the marriage is ending but not how to divide a house, a retirement account or the weeks with your children. Maybe one of you has suggested mediation and the other is unsure whether it is a choice or a requirement. Or maybe someone told you "the court makes you mediate," and you are trying to work out whether that is true for your case.

This article separates the two kinds of mediation people mean when they ask this question: the court's custody mediation, which the law can require, and private divorce mediation, which couples choose. It also covers what mediation does not change, including financial disclosure, court approval of child support and the six-month waiting period.

What California Law Actually Requires

Family Code section 3170 contains the one mandatory trigger. When a request for a custody or visitation order shows on its face that custody, visitation or both are contested, "the court shall set the contested issues for mediation." That requirement is about children. It applies when parents disagree about custody or visitation and ask the court to decide.

Financial issues sit differently. Nothing in the custody mediation statutes requires spouses to mediate the division of property, spousal support or child support. Those issues can be settled by agreement, through private mediation, through negotiation between lawyers, or by a judge at trial.

It helps to be precise about the word itself. Under Evidence Code section 1115, mediation is "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 talk through the issues so they can reach an agreement they both accept. A mediator does not represent either spouse, does not advocate for either one, and does not decide anything for them. The decisions stay with the two of you.

Private divorce mediation, the kind a couple arranges on their own, can cover every part of a divorce: property, support and parenting. It is voluntary. Both spouses take part because both choose to, whether they live in San Diego County or elsewhere in California and meet online.

Court-Ordered Custody Mediation: How It Works in California

When section 3170 applies, the mediation takes place within the court system, not with a private mediator the couple selects. In San Diego County, family law cases are heard by the Superior Court of California, County of San Diego, and the court's custody mediation is child custody recommending counseling with the court's Family Court Services.

That name comes from Family Code section 3183(a). Except as section 3188 provides, the court's mediator may, consistent with local court rules, submit a recommendation to the court about custody or visitation, but only if the mediator first provides the recommendation in writing to the parties and their attorneys, including any counsel for the children, before the hearing. A mediator authorized to do this is called a "child custody recommending counselor." Family Court Services calls this person the Family Court Counselor.

Family Court Services explains that if the parents do not reach an agreement, the counselor makes a recommendation and the court hearing goes forward. The counselor's recommendation can matter. The judge makes the decision. Section 3183 also allows the mediator, when parents have not agreed, to recommend an investigation or other services before the hearing, and in appropriate cases to recommend restraining orders to protect the child's well-being.

Confidentiality in the court's process follows its own rule. Evidence Code section 1117(b) says the Evidence Code's mediation confidentiality chapter does not apply to these court custody proceedings. Instead, Family Code section 3177 provides that they "shall be held in private and shall be confidential," and that communications from the parties to the mediator in the proceeding are treated as official information.

Under Family Code section 3170(b), domestic violence cases are handled by Family Court Services under a separate written protocol approved by the Judicial Council. For more on what parents typically meet in this setting, see the overview of child custody mediation in California.

Private Divorce Mediation: Voluntary, Confidential, and Distinct from the Court's Process

Private mediation begins with a shared decision. Neither spouse can compel the other to take part, and either can stop. It is separate from the court and from Family Court Services. Simple Divorce Mediation is a private practice and is not connected to the court, Family Court Services or any government program.

Because it is private and chosen, this kind of mediation can address the whole divorce: dividing community property, spousal support, child support and a parenting plan. Couples sometimes resolve everything; sometimes they resolve part of it and leave the rest for another process. For a walk-through of each stage, see the San Diego mediation process.

Confidentiality is one reason couples consider it. Evidence Code section 1119 provides, except as the mediation chapter otherwise allows, that what is said and written for or during a mediation or a mediation consultation is generally not admissible or subject to discovery, and that communications between participants "shall remain confidential." That protection has limits and is not absolute.

One limit concerns the agreement itself. Under Evidence Code section 1123, a written settlement agreement prepared in mediation and signed by the settling parties is not protected by that chapter if any of these is true: (a) it says it is admissible or subject to disclosure, (b) it says it is enforceable or binding, (c) all parties expressly agree in writing, or orally under section 1118, to its disclosure, or (d) it is used to show fraud, duress or illegality relevant to an issue in dispute. A divorce settlement meant to become a judgment usually says it is binding. How a mediation agreement works is covered in more detail separately.

Evidence Code 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. The term matters because section 1119 refers to it, but the confidentiality rules carry their own exceptions, so how they apply depends on the facts.

Either spouse may have a lawyer of their own during private mediation. Under Evidence Code section 1129, an attorney representing a client in a mediation must give that client a printed disclosure of the confidentiality restrictions, and get the client's signed acknowledgment, as soon as reasonably possible before the client agrees to participate, or as soon as reasonably possible after being retained if the attorney is retained later.

Financial Disclosure Still Applies When You Mediate

Choosing mediation does not remove the duty of financial disclosure. Many couples come to mediation hoping to keep things simpler, and it may be, depending on the couple and the issues. The disclosure steps remain the same.

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. The parties can extend those times by written agreement, or the court can extend them by order. If 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 that response. The preliminary declaration is signed under penalty of perjury and includes the tax returns the declarant filed in the two years before serving it.

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 parties 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 spouses mutually waive the final declaration.

Under section 2105(d), that waiver must be mutual and must be executed under penalty of perjury in open court or by separate stipulation. It must state both of the representations the section lists: that both spouses have complied with section 2104 and completed and exchanged preliminary declarations, and that both have completed and exchanged a current income and expense declaration including all material facts about earnings, accumulations and expenses. Property division mediation explores how these disclosures feed into dividing assets.

Child Support and Parenting Agreements: What Mediation Can and Cannot Settle

Family Code section 4065(a) lets parents agree on a child support amount, subject to the court's approval. The court will not approve an agreed amount below the guideline formula unless the parents declare all five things the section lists: (1) they are fully informed of their rights concerning child support; (2) the order is agreed to without coercion or duress; (3) the agreement is in the best interests of the children; (4) the children's needs will be adequately met by the agreed amount; and (5) the right to support has not been assigned to the county and no public assistance application is pending. Parents who reach a number together in mediation are often surprised that a judge still reviews it, but that review is part of the law.

Parenting arrangements work in a similar way. A parenting plan reached in mediation generally becomes enforceable when the court makes it part of an order or judgment.

Timing is a separate matter. Under Family Code section 2339, a judgment of dissolution does not end the marriage until six months have passed from the date the summons and petition are served or the date the respondent appears in the case, whichever occurs first. The court may extend that period for good cause. Reaching agreement in mediation does not shorten it.

When Mediation May Not Be Appropriate

If you are in immediate danger, call 911.

Mediation may not be right for every couple. Where there has been domestic violence, coercion or a protective order, safety comes first. A process built on two people speaking freely and reaching an agreement both genuinely accept depends on neither one being afraid of the other. No one in that situation is expected to mediate with their spouse.

The court's custody process has its own safeguards. Family Code section 3170(b) provides that domestic violence cases are handled by Family Court Services under a separate written protocol approved by the Judicial Council. Under Family Code section 3181, where there has been a history of domestic violence or a protective order is in effect, the court's mediator must meet with the parties separately and at separate times if the protected party, or the party alleging domestic violence in a written declaration under penalty of perjury, requests it.

For anyone reading this while unsure about safety at home, the Superior Court of California, County of San Diego and the California courts' self-help resources describe how protective orders work.

If You'd Like to Talk Through Your Situation

Whether mediation is required often turns on a single question: is custody actually contested, or are the two of you still working it out? A conversation with the practice can cover which of your issues, from property and support to a parenting plan, private mediation can address, how the disclosure steps fit around it, and where court approval still comes in. If safety is a concern in your home, that comes before any discussion of mediation.

To talk through how this applies to 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 2026-10-04.