Can We Mediate if We Disagree About Custody?

When parents in California disagree about custody, mediation is a process where a neutral mediator helps both of them talk through the parenting plan and look for an agreement they both accept. It happens on one of two tracks. One is the court's required custody mediation. The other is private mediation that the parents choose themselves.

Most people facing a custody disagreement come to this question unsure where they stand. Maybe one of you has already filed. Maybe you are still talking at the kitchen table and getting stuck on the school-week schedule or who decides about therapy. Either way, you are probably asking the same things: is mediation something the court will make us do, what happens to what we say there, and how much can the two of us actually decide? This article walks through each piece, in the order it tends to come up.

What Mediation in a Custody Dispute Actually Means

Evidence Code section 1115 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." The mediator is that neutral person. Put plainly, the mediator's job is to help you and your spouse talk to each other productively, so the two of you can shape terms you can both live with.

That definition also tells you what a mediator is not. A mediator does not represent either parent. A mediator does not advocate for either parent, and does not act as either parent's lawyer. In private mediation, the mediator decides nothing. The parents decide.

Two terms come up constantly here. Custody means the legal arrangement for a child's care after parents separate. It covers who makes major decisions for the child and where the child lives. Visitation, often called parenting time, is the schedule for the time a child spends with a parent.

Mediation is a different way of reaching those arrangements than having a judge decide them after hearings. In a court-decided case, each parent presents their side, and a judge issues orders based on the child's best interests. In mediation, both parents work on the plan together, with help. Either parent may have their own attorney during the process, whether advising in the background or present in sessions. Neither parent is required to have one, and neither is barred from having one.

The Two Types of Custody Mediation in California

California runs two separate custody mediation tracks. They follow different rules, and it matters which one you are in.

Track 1: the court's custody mediation. Family Code section 3160 requires each superior court to make a mediator available. In San Diego County, family law cases are heard by the Superior Court of California, County of San Diego. That court's program is called child custody recommending counseling, and it is run by the court's Family Court Services (Family Code sections 3170 and 3183). Family Court Services calls the person who meets with parents the Family Court Counselor.

This counselor does more than facilitate. Under Family Code section 3183(a), except as section 3188 provides, the mediator may, consistent with local court rules, submit a recommendation to the court about custody or visitation if the mediator first provides the recommendation in writing to the parties and their attorneys before the hearing. According to Family Court Services, if parents reach no agreement, the counselor makes a recommendation and the court hearing goes forward. The judge makes the decision, and the recommendation is part of what the judge considers. The counselor's input can carry real weight.

Track 2: private mediation. Private mediation is something you and your spouse choose. It can address custody and visitation alongside the rest of the divorce. Simple Divorce Mediation is a private practice. It is not connected to the court, Family Court Services, or any government program. It mediates California divorces for couples in San Diego County and, through online mediation, for couples anywhere in California.

The confidentiality rules also differ between the tracks, and Evidence Code section 1117(b) is the reason. The section 1117(b) exception is covered in the confidentiality section below. For a side-by-side view, see private versus court divorce mediation.

When California Law Requires Mediation

Family Code section 3170(a) states the rule directly. If it appears on the face of a petition, application, or other pleading to get or change a temporary or permanent custody or visitation order that custody, visitation, or both are contested, "the court shall set the contested issues for mediation." So when custody is contested in a filed case, the court's mediation is not optional. Not all family law mediation is voluntary.

Section 3170(b) adds that domestic violence cases are handled by Family Court Services under a separate written protocol approved by the Judicial Council. The safety section below explains why this matters.

Private mediation works differently. It is voluntary in the sense that couples choose it, and it is not the program section 3170 orders. Some couples work through custody in private mediation before anything is filed, or alongside the rest of their divorce issues. Whether and how that interacts with the court's program depends on the couple's circumstances and where their case is filed. For a discussion of whether a spouse can be required to participate in mediation, see mandatory divorce mediation rules.

Confidentiality in Private Mediation — What the Evidence Code Says

One worry many parents bring into mediation is that something said while trying to compromise could later be used against them. The Evidence Code addresses this for private mediation, within limits.

Evidence Code section 1119 provides that, except as the mediation chapter otherwise provides, nothing said and no writing prepared for, during, or under a mediation or mediation consultation is admissible or subject to discovery in civil and other noncriminal proceedings. It also provides that "all communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential." Evidence Code section 1128 adds that referring to a mediation during a later trial is an irregularity in the proceedings. The protection is strong, but it is not absolute.

The most important exception concerns the agreement itself. Under Evidence Code section 1123, a written settlement agreement prepared in or under a mediation and signed by the settling parties is not made inadmissible or protected from disclosure if any of these is true: it says it is admissible or subject to disclosure, or words to that effect; it says it is enforceable or binding, or words to that effect; all parties expressly agree in writing, or orally as section 1118 allows, to its disclosure; or it is used to show fraud, duress, or illegality relevant to an issue in dispute. A signed agreement meant to be binding is often admissible for exactly that reason.

The court's custody mediation follows a separate rule. Evidence Code section 1117(b) says the mediation chapter does not apply to proceedings under Chapter 11 of Part 2 of Division 8 of the Family Code, which begins at section 3160. That is the court's custody mediation. Those proceedings are instead governed by Family Code section 3177, which says they "shall be held in private and shall be confidential." Sections 1119 and 1123 do not govern the court's program.

The Evidence Code also defines a mediation consultation as a communication between a person and a mediator to start, consider, or reconvene a mediation, or to retain the mediator (Evidence Code section 1115(c)). That is a legal definition only. It does not mean that any particular conversation with a practice is protected.

What Parents Can and Cannot Decide in Mediation

Parents in mediation can work out the full shape of a parenting arrangement. Legal custody is the right and responsibility to make major decisions for a child, such as schooling and health care. Physical custody is about where the child lives day to day. Parents can also agree on a visitation schedule, including weekdays, weekends, holidays, and vacations. Family Code section 3020 reflects California's policy that a child's health, safety, and welfare come first, along with frequent and continuing contact with both parents when that is in the child's best interests. Parenting agreements are measured against that policy. For more on building the schedule, see parenting plan mediation.

Child support is different. Under Family Code section 4065(a), parents may agree on a child support amount, but the agreement is subject to the court's approval. The court will not approve an 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 children's best interests; 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. Parents cannot simply settle on any number they choose.

Financial disclosure also still applies. Under Family Code section 2104(f), each spouse serves a preliminary declaration of disclosure with the petition or response, or within 60 days of filing it, unless the parties extend that time by written agreement or the court extends it by order. If the petitioner served by publication or posting under a court order and the respondent files a response before a default judgment, the petitioner has 30 days from that response. 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 they enter into an agreement resolving property or support issues other than temporary support. If the case goes to trial, the deadline is no later than 45 days before the first assigned trial date. The spouses may mutually waive the final declaration. Under section 2105(d), that waiver must be signed under penalty of perjury in open court or by separate stipulation, and it must include the representations that section lists, including that both spouses have completed and exchanged their preliminary declarations. Mediating does not skip, shorten, or replace any of these steps. Couples with children can find more on these steps in divorce mediation with children.

Domestic Violence, Safety, and When Mediation May Not Be Appropriate

If you are in immediate danger, call 911.

Safety comes first. Where there has been domestic violence, coercion, or a protective order, mediating face to face or online with the other spouse may not be safe, and no one should feel pressed to try. Mediation works only when both people can speak freely and agree without fear. That condition is not always present, and mediation is not right for every couple.

The law reflects this. Family Code section 3170(b) provides that domestic violence cases in the court's program are handled by Family Court Services under a separate written protocol approved by the Judicial Council. In weighing a child's best interests, Family Code section 3011 directs the court to consider, among other factors, the child's health, safety, and welfare and any history of abuse. For a broader look, see when divorce mediation is not appropriate.

Preparing for Custody Mediation: What to Think Through Beforehand

Going in with some sense of the issues often makes the conversation easier for both parents, even when emotions are running high. Topics that commonly come up include:

• Legal custody: whether major decisions will be shared, and how you will handle it if you disagree.
• Physical custody: where the child sleeps on school nights and on weekends, and how exchanges will work.
• Holidays and vacations: how birthdays, school breaks, and summer travel are divided or rotated.
• Day-to-day decisions: how choices about education, health care, and extracurricular activities get made and shared.
• Communication: how you will update each other about the child, and how the plan might change as the child grows.

The mediator's role through all of this is to help both parents communicate. It is not to tell either parent what to agree to. Each parent brings their own view of what the child needs, and the mediator helps both views be heard.

If either parent hires an attorney for mediation, Evidence Code section 1129 places a duty on that attorney. As soon as reasonably possible before the client agrees to participate, the attorney must give the client a printed disclosure of the confidentiality restrictions in section 1119 and get the client's signed acknowledgment. If the attorney is hired after the client has already agreed to participate, the attorney must do this as soon as reasonably possible after being retained.

If You'd Like to Talk Through Your Custody Questions

A custody disagreement touches the parts of family life that matter most, and the rules shift depending on whether a case is filed, whether custody is contested, and whether safety is a concern. A consultation is a place to discuss how the two mediation tracks work, how co-parenting mediation might fit alongside property and support issues, and what disclosures the process involves. Simple Divorce Mediation works with couples in San Diego County and, online, anywhere in California. The practice does not represent either spouse.

To talk through how mediation could work for your family, 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.