How to Suggest Divorce Mediation to Your Spouse in California

You can suggest divorce mediation to your spouse in California by raising it as a shared option, not a demand: describing how a neutral mediator helps you both work through property, support and parenting toward an agreement you both accept, and leaving room for your spouse to think it over.

You may have lived with the decision to divorce for a while and now be trying to find words for the next part. Maybe nothing has been filed yet. Maybe one of you has filed, and you are wondering whether there is a calmer way through the house, the retirement accounts and the children's schedules than taking every question to a judge. The hard part may not be the idea of mediation itself. It is how to bring it up without it sounding like a tactic, and how to know what you are actually proposing.

This article explains what divorce mediation means under California law, what it can and cannot settle, how it can be raised with a spouse, what the process looks like, and when it may not fit. It is written for couples in San Diego County and, through online mediation, for couples anywhere in California.

What Divorce Mediation Is Under California Law

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." The same section defines a mediator as "a neutral person who conducts a mediation." Those two sentences carry the whole idea: one neutral person, two spouses, and a goal of an agreement you both accept.

Neutral means the mediator is on neither side. The mediator does not represent you or your spouse, does not speak for either of you, and does not decide any issue. The mediator is not either spouse's lawyer. Either of you may have a lawyer of your own who advises only you; the law does not require it, and it does not forbid it. A model that combines the two is described in attorney-assisted divorce mediation.

Private divorce mediation is also separate from the court's child custody mediation. When custody or visitation is contested in a court case, the court runs its own mediation through Family Court Services. That process has different rules, discussed further below. Simple Divorce Mediation is a private practice and is not connected to the court or to Family Court Services.

Confidentiality is one feature of private mediation. Under Evidence Code section 1119, except as the mediation chapter of the Evidence Code otherwise provides, what is said and written for the purpose of, in the course of, or pursuant to a mediation is generally not admissible or subject to discovery in later civil and other noncriminal proceedings, and those communications remain confidential. That protection is not absolute. Evidence Code section 1123 lists the situations in which a written settlement agreement signed by the spouses can be admitted or disclosed: when the agreement says it is admissible or subject to disclosure, when it says it is enforceable or binding, when all parties expressly agree to its disclosure, or when it is used to show fraud, duress or illegality relevant to an issue in dispute.

What Mediation Can and Cannot Resolve

Divorce mediation can address the main issues in a California divorce, including how community property and debts are divided, spousal support, a parenting plan with custody and visitation arrangements, and child support. Community property generally means, in plain terms, what the two of you acquired during the marriage. Questions like buying out the house or dividing retirement accounts in mediation may be part of the same conversation.

Child support is one area where your agreement is not the last word. Under Family Code section 4065(a), unless federal law prohibits it, parents may agree on a child support amount subject to the court's approval, and the court does 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 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 that amount; and the right to support has not been assigned to the county and no public assistance application is pending.

Mediation does not remove the duty of financial disclosure. A declaration of disclosure is a sworn statement, made under penalty of perjury, of what each spouse owns, owes and earns. 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; those time periods can be extended by written agreement of the parties or by court 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, the petitioner has 30 days from that response.

The final declaration of disclosure and a current income and expense declaration are due, except by court order for good cause, before or at the time you 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 (Family Code section 2105(a)). Spouses may mutually waive the final declaration, but under section 2105(d) the waiver must be executed under penalty of perjury in open court or by separate stipulation, and it must include the representations that subdivision lists, including that both spouses have completed and exchanged preliminary declarations and current income and expense declarations and that the waiver is knowingly, intelligently and voluntarily entered into.

Timing has its own floor. Under Family Code section 2339, subject to certain exceptions, a judgment of dissolution is not final to end the marriage until six months have passed from the date the summons and petition were served or the date the respondent appeared in the case, whichever occurs first, and the court may extend that period for good cause. Mediation can result in a written agreement you both sign, but a court enters the judgment of dissolution. In San Diego County, that court is the Superior Court of California, County of San Diego.

How to Bring Up Mediation With Your Spouse

One way to raise it is to present mediation as a way for both of you to reach an agreement you can each live with, rather than as a way for one spouse to gain ground. The point is a shared process, not a position.

Private divorce mediation works only when both spouses take part. It is something the two of you choose together. That is different from the court's custody mediation: when custody or visitation is contested in a court filing, Family Code section 3170(a) requires the court to set those issues for mediation. So not all family law mediation is voluntary, but the private kind depends on both of you being willing.

Timing and format are a personal choice. A spouse might raise it in a quiet conversation, or put it in a short message or letter so the other spouse can read it more than once. Neither approach is required, and what fits depends on how the two of you communicate.

The other spouse may need time. A first reaction is not always a final answer, and a person hearing the word "divorce" and the word "mediation" in the same week may simply need space. Sharing general information, such as this page or a page of divorce mediation questions, can let your spouse consider it without feeling pressed.

If there has been domestic violence, coercion or a protective order between you, safety comes first, and mediation with the other spouse may not be appropriate. The next section returns to this.

What Happens During the Mediation Process

In mediation, the mediator helps the spouses communicate about each issue and work toward terms both accept. The mediator does not decide. You and your spouse decide.

Evidence Code section 1115(c) defines a mediation consultation: a communication between a person and a mediator for the purpose of initiating, considering or reconvening a mediation or retaining the mediator.

During the process, the general confidentiality described earlier under Evidence Code section 1119 applies, subject to the exceptions the Evidence Code's mediation chapter provides. If either spouse has a lawyer representing them in the mediation, Evidence Code section 1129 requires that lawyer, except in a class or representative action, to give the client a printed disclosure of those confidentiality restrictions as soon as reasonably possible before the client agrees to participate, or, if the lawyer is retained later, as soon as reasonably possible after being retained, and to obtain the client's signed acknowledgment.

If you and your spouse reach agreement, the terms may be written into a marital settlement agreement. Because a signed agreement that says it is enforceable or binding falls within Evidence Code section 1123, that kind of document can be admitted or disclosed. A mediation may settle everything or only part, and no particular result can be promised.

When Mediation May Not Be the Right Path

If you are in immediate danger, call 911.

Where there has been domestic violence, coercion or a protective order, safety comes first. Mediation asks two people to negotiate as equals, and that may not be possible or safe after abuse. Nothing here is meant to encourage a person in that situation to mediate with the other spouse. In the court's custody process, 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.

Willingness matters too. Because private mediation depends on both spouses taking part, it cannot go forward if one spouse is unwilling.

When custody or visitation is contested in court, the separate court process applies. In San Diego County, that mediation is 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 section 3188 provides, the court's mediator may, consistent with local court rules, submit a recommendation to the court about custody or visitation if it is first given in writing to the parties and their attorneys, including counsel for any minor children, before the hearing; a mediator authorized to do this is called a child custody recommending counselor. Family Court Services says that if no agreement is reached, the counselor makes a recommendation and the court hearing proceeds. The judge decides. For more on how the two kinds compare, see when you disagree about custody.

The confidentiality rules differ as well. Evidence Code section 1117(b) says the Evidence Code's mediation chapter does not apply to the court's custody mediation proceedings under Chapter 11 of Part 2 of Division 8 of the Family Code. Instead, Family Code section 3177 provides that those proceedings are held in private and are confidential.

Mediation may be less time-consuming or less stressful than litigation for some couples, depending on the couple and the issues. It may not be, and no one can promise it will be.

If You'd Like to Talk Through Mediation

Suggesting mediation can be less about the law than about finding a starting point the two of you can share. A consultation is a place to raise those questions, whether you are in San Diego County or elsewhere in California through online mediation. You can take whatever time you need first.

When you and your spouse are ready, you can call Simple Divorce Mediation at 858-330-1378 to schedule a joint mediation consultation.

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