Private Mediation vs. Family Court Services Mediation in California: What's the Difference?

If you and your spouse are comparing the two, private divorce mediation is voluntary and can cover every divorce issue. Family Court Services mediation is set by the court when custody or visitation is contested. It covers only those issues and may end with a counselor's recommendation to the judge.

Couples who reach this question are usually in one of two places. Some have heard the word "mediation" from friends, a court website or a lawyer and are trying to work out whether it means one process or several. Others are parents who have just learned a court appointment is coming. They want to know what happens there, who will be in the room and whether what they say stays private. Both groups are carrying the same worry: making a choice about children, money and a home without fully understanding the terms. This article sets the two processes side by side so you and your spouse can see where each one begins and ends. It covers who runs each process, what each one covers, what confidentiality protects, and what each one produces.

Quick Comparison: Private Mediation and Family Court Services Mediation

The two processes share a name, but they rest on different statutes, have different purposes and lead to different results. The table below gives the short version. Each row is explained in the sections that follow.

Simple Divorce Mediation provides private divorce mediation. It is not part of the court, Family Court Services or any government program.

What Private Divorce Mediation Is

Under Evidence Code section 1115, mediation is a process in which a neutral person helps the disputants communicate so they can reach an agreement they both accept. That neutral person is the mediator. In private divorce mediation, you and your spouse choose to begin the process together, and you decide which issues to bring to the table.

What it can cover. Private mediation can address every issue a California divorce involves. Those issues include how community property and debts are divided, whether and how much spousal support is paid, child support, a parenting plan for custody and visitation, and the practical work of preparing and exchanging financial disclosures. Couples with children often work through parenting plan mediation and support together, because the schedule and the support figures tend to affect each other.

What the mediator does and does not do. The mediator is neutral. The mediator does not represent either spouse, does not advocate for either spouse, does not act as either spouse's lawyer, and does not decide anything for you. The mediator helps the two of you talk through options, organize information and put the terms you reach into writing. Either spouse may have a lawyer of their own, before, during or after mediation. Whether to hire one is each spouse's own decision.

Confidentiality, and its limits. Evidence Code section 1119 generally provides that what is said, written or admitted for the purpose of a mediation is not admissible or subject to discovery in later civil proceedings, and that communications between participants remain confidential. That protection has exceptions. Under Evidence Code section 1123, a written settlement agreement prepared in mediation and signed by the settling parties is not protected by the chapter if any of these conditions is met:

• the agreement says it is admissible or subject to disclosure;
• the agreement says it is enforceable or binding;
• all parties expressly agree to its disclosure, in writing or orally as the chapter allows; or
• the agreement is used to show fraud, duress or illegality relevant to an issue in dispute.

Because divorce agreements are usually written to be enforceable, this exception often matters in practice. Mediation confidentiality is strong, but it is not absolute.

If a spouse has a lawyer. Evidence Code section 1129 requires an attorney who represents a client in a mediation to give that client a printed disclosure of the confidentiality restrictions and to obtain a signed acknowledgment. The attorney must do this as soon as reasonably possible before the client agrees to participate. An attorney retained after the client has already agreed must do it as soon as reasonably possible after being retained.

Before mediation begins. 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.

Some couples find that mediating may take less time or cost less than litigating. Whether that happens depends on the couple and the issues, and results vary from case to case. The trade-off is that private mediation depends on both spouses' willingness to keep participating, because no one in the room can make a decision if the two of you cannot.

What Family Court Services Mediation Is

Family Code section 3170 sets the rule. If a petition or other request to obtain or change a custody or visitation order shows that custody, visitation or both are contested, the court must set the contested issues for mediation. That makes this kind of mediation part of the court case rather than a step the spouses choose. It is also why it is not accurate to say that all family law mediation is voluntary.

Scope. Family Court Services mediation covers custody and visitation. It does not address property division, spousal or child support, or financial disclosure. Those issues move forward separately. Under Family Code section 3161, the purposes of the process include reducing acrimony between the parties and developing an agreement that assures the child close and continuing contact with both parents, in the child's best interest. Under section 3180, the mediator has a duty to assess the child's needs and interests and may interview the child when the mediator considers it appropriate.

In San Diego County. Family law cases in San Diego County are heard by the Superior Court of California, County of San Diego, which serves communities throughout the county. There, court custody mediation takes the form of child custody recommending counseling under Family Code sections 3170 and 3183. Family Court Services calls the person who conducts it the Family Court Counselor. Under section 3183(a), except as section 3188 provides, the mediator may, consistent with local court rules, submit a recommendation to the court on custody or visitation. The mediator must first provide that recommendation in writing to the parties and their attorneys before the hearing, and the court asks at the hearing whether they received it.

Family Court Services says that if no agreement is reached, the counselor makes a recommendation and the court hearing proceeds. The judge makes the decision. The counselor's recommendation is part of what the judge considers, so the process carries real weight in how a custody matter unfolds. Section 3183(b) adds that, when the parties have not agreed, the mediator may recommend an investigation or other services before the hearing.

Confidentiality. Different rules apply here. Evidence Code section 1117(b) says the Evidence Code's mediation confidentiality chapter does not apply to proceedings under the Family Code's custody mediation chapter. Instead, Family Code section 3177 provides that those proceedings are held in private and are confidential, and that the parties' communications to the mediator are treated as official information under the Evidence Code.

Domestic violence. 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.

The genuine strength of this process is that it is built into the court case, focused on the child, and available when parents cannot agree. Its genuine limit is its narrow scope, together with the fact that the outcome may rest on a recommendation rather than on the parents' own terms. For a fuller walk-through, see child custody mediation.

Key Differences Between the Two Processes

The clearest way to see why these processes are not interchangeable is to compare them point by point.

Scope. Private mediation can produce terms on every issue in the divorce. Family Court Services mediation addresses custody and visitation only. A couple who reaches a parenting agreement at Family Court Services still has property and support to resolve some other way.

Voluntariness. Private mediation begins because both spouses choose it. Family Court Services mediation begins because section 3170 requires the court to set contested custody and visitation issues for mediation.

The mediator's role. A private mediator facilitates and does not decide anything. In San Diego County, the Family Court Counselor may submit a recommendation to the court under section 3183(a). Some parents find the private mediator's purely facilitative role easier to speak openly with. Others value having a court professional's assessment when they cannot agree.

Confidentiality. Private mediation is governed by Evidence Code section 1119, subject to the section 1123 exceptions. Court custody mediation is governed by Family Code section 3177, and the Evidence Code chapter does not apply to it under section 1117(b). These are separate frameworks, and the protections of one should not be assumed for the other.

Outcome. Private mediation can lead to a single written agreement covering everything the spouses resolve, or to a partial agreement with the remaining issues set aside for another next step. Family Court Services produces either a parenting agreement or a counselor's recommendation, limited to custody and visitation.

Financial disclosure. Mediation of either kind does not remove the duty of financial disclosure. 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. A different deadline applies 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 then has 30 days from that response. Under 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. These are due before or at the time the spouses enter into an agreement resolving property or support issues other than temporary support. If the case goes to trial, they are due, except by court order for good cause, no later than 45 days before the first assigned trial date. The final declaration can be waived only by mutual waiver, never by one spouse alone. Under section 2105(d), that waiver must be executed under penalty of perjury in open court or by separate stipulation. It must also state 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 that includes all material facts about earnings, accumulations and expenses. In private mediation, the disclosures are often the foundation the property and support discussion is built on.

For parents moving between these two processes at the same time, the next two sections describe the situations in which each process tends to come up.

When Family Court Services Mediation Typically Applies

If you are in immediate danger, call 911.

Family Court Services mediation typically comes into a case when one parent files a request for a custody or visitation order, or a request to change one, and the other parent does not agree. At that point, section 3170 requires the court to set the contested issues for mediation. In San Diego County, that means child custody recommending counseling.

This process usually arises in a few situations. One is a divorce in which the parents have reached terms on some issues but have filed opposing custody requests. Another is a parent seeking to modify an existing parenting schedule over the other parent's objection. A third is a case in which parents tried to reach a parenting plan on their own and could not. In each situation, only custody and visitation are before the counselor. Property, support and disclosures move forward on their own track.

Safety comes first. Where there has been domestic violence, coercion or a protective order, safety takes priority over any discussion of mediating with the other spouse. Domestic violence cases at Family Court Services follow the separate Judicial Council protocol under section 3170(b). Under Family Code section 3181, in court-required custody mediation where there has been a history of domestic violence or a protective order is in effect, the mediator must meet with the parties separately and at separate times. That applies at the request of the party protected by the order, or of the party alleging domestic violence in a written declaration under penalty of perjury. A person in that position may also want to speak with a lawyer of their own about the court process.

When Private Mediation Typically Fits

Private mediation tends to come up for couples who want to work through all of their divorce issues in one process. That includes dividing property and debts, spousal support, a parenting plan, and child support. It often suits spouses who can still share information and talk about logistics even when they disagree, and who would rather shape the terms themselves than have a judge set them.

For couples with children, the parenting plan and support can be worked through side by side. Parents may agree on child support, but under Family Code section 4065(a) 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:

1. They are fully informed of their rights concerning child support.
2. The order is being agreed to without coercion or duress.
3. The agreement is in the best interests of the children involved.
4. The needs of the children will be adequately met by the stipulated amount.
5. The right to support has not been assigned to the county and no public assistance application is pending.

More detail appears in child support mediation.

Private mediation also fits couples who live in different parts of the state, or who prefer to meet from home. Simple Divorce Mediation mediates for couples in San Diego County and, through online divorce mediation, for couples anywhere in California. Where a case is filed, and which court's rules apply, depends on the spouses' circumstances, such as where they live. The San Diego divorce mediation process explains how this works locally.

Mediation may also take longer than expected, or end with only part of the issues resolved. Either spouse may consult a lawyer of their own along the way.

Mediation is not right for every couple. Where there has been domestic violence, coercion or a protective order, safety comes first, and no one should feel encouraged to mediate with the other spouse.

If You're Sorting Out Which Process Applies to You

The line between these two processes often depends on details. It can matter whether a custody request has been filed, whether the parents agree on a schedule, which issues remain open, and where the disclosures stand. A consultation is a place to talk through how private mediation would work with the property, support and parenting issues in your divorce. It is also a place to see how private mediation sits alongside any court custody process already underway. To talk through how these two kinds of mediation fit your situation, 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.