Types of Divorce Mediation in California

If you and your spouse are weighing mediation, divorce mediation is often described by the mediator's approach, and California also has a separate court process. In facilitative mediation, a neutral mediator guides your conversation. In evaluative mediation, the mediator also shares a view of how a court might see an issue. Transformative mediation focuses on how you communicate. The court's own custody mediation is a separate process.

Most people facing a divorce who start reading about mediation run into these labels quickly and are not sure what separates them. You may have decided, together or on your own, that you would rather work things out than hand every decision to a judge. Now you are trying to picture what would actually happen in the room, or on the screen, and whether the word "mediation" means the same thing in a private setting as it does at the courthouse. It does not. This article walks through each type, what California law says about mediation in general, and what stays the same no matter which approach you and your spouse choose.

One plain definition carries through the whole page. Mediation is a conversation guided by a neutral person, the mediator, whose job is to help you and your spouse reach an agreement you both accept. The mediator does not decide anything for either of you.

What Divorce Mediation Is Under California Law

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." Section 1115(b) defines a mediator as "a neutral person who conducts a mediation," and the definition includes any person the mediator designates either to assist in the mediation or to communicate with the participants in preparation for a mediation. Those definitions set the boundaries for every private model described below.

Neutral is the key word. A mediator does not represent you or your spouse, does not act as either spouse's lawyer, and does not advocate for one side. The mediator also does not issue a ruling. Whatever you and your spouse agree to is your agreement, reached by the two of you.

Either spouse may have a lawyer of their own during mediation. Neither of you is required to have one, and neither of you is barred from having one. Some couples mediate with no outside lawyers, some each consult a lawyer between sessions, and some bring lawyers into the sessions themselves.

California also has a second, separate kind of mediation that belongs to the court. When parents disagree about custody or visitation in a case before the court, the Family Code sends those issues to the court's own mediation program, under the chapter that begins with Family Code section 3160. In San Diego County, that program is run by Family Court Services of the Superior Court of California, County of San Diego, and it is called child custody recommending counseling. It is covered later in this article.

The two processes run on different rules. Evidence Code section 1117(b) says the Evidence Code's mediation confidentiality chapter does not apply to proceedings under that Family Code chapter. Private divorce mediation, the kind Simple Divorce Mediation offers to couples in San Diego County and, online, to couples anywhere in California, is not connected to the court, to Family Court Services, or to any government program. For a side-by-side look, see the page on private versus court mediation.

Facilitative Mediation: The Mediator as Process Guide

A facilitative mediator manages the conversation rather than judging it. The mediator helps you and your spouse name the issues, talk about what matters to each of you underneath your stated positions, and build options you might both accept. A facilitative mediator does not tell either of you who has the stronger argument or predict how a judge would rule.

This is the model many people picture when they hear the word mediation. The mediator might ask what a workable weekday schedule looks like for your children, or what each of you needs from the house sale to move forward. The mediator keeps the discussion on track and makes sure each of you is heard. The mediator does not give legal advice to either spouse and does not decide any issue. You and your spouse keep decision-making authority over every term.

Confidentiality is part of what makes open conversation possible. Under Evidence Code section 1119, except as the Evidence Code's mediation chapter otherwise provides, no evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of it cannot be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given. The same is true of a writing prepared for those purposes, and all communications, negotiations or settlement discussions between participants in the course of a mediation or mediation consultation remain confidential. A mediation consultation is a communication between a person and a mediator for the purpose of initiating, considering, or reconvening a mediation or retaining the mediator (section 1115(c)).

That protection is not absolute. Under Evidence Code section 1123, a written settlement agreement prepared in or pursuant to mediation and signed by the settling parties is not made inadmissible or protected from disclosure by that chapter if any of the following is true:

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

A signed written agreement that says it is enforceable or binding, for example, falls within the second condition.

Mediation also does not change the duty of financial disclosure. A declaration of disclosure is a declaration executed under penalty of perjury on a form prescribed by the Judicial Council that identifies each spouse's assets and liabilities; a completed income and expense declaration goes with it. Under Family Code section 2104(f), each spouse serves the 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. 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 that response.

The final declaration of disclosure follows later. Except by court order for good cause, Family Code section 2105(a) requires each spouse to serve 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 parties mutually waive the final declaration. Under section 2105(d), that mutual waiver is executed under penalty of perjury in open court or by separate stipulation and must include the representations the section lists, including that both parties have complied with section 2104 and exchanged their preliminary declarations.

Evaluative Mediation: When the Mediator Shares an Assessment

Evaluative mediation adds one element the facilitative model leaves out: the mediator may offer a view. An evaluative mediator may point out strengths and weaknesses in each spouse's position and share a sense of how a court might look at an issue, such as a disputed support amount or whether an asset is community or separate.

The difference is one of role. A facilitative mediator helps you build options. An evaluative mediator takes a more directive part in reality-testing them, which simply means asking whether a position holds up against how the law usually works. That can help when you and your spouse are stuck because you each believe a judge would see things your way.

The neutral role does not change. An evaluative mediator still does not represent either spouse, does not act as either spouse's attorney, and does not decide the outcome. The spouses decide. Under Evidence Code section 1121, neither a mediator nor anyone else may submit to a court or other adjudicative body, and a court or other adjudicative body may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning a mediation conducted by the mediator, other than a report that is mandated by court rule or other law and that states only whether an agreement was reached, unless all parties to the mediation expressly agree otherwise in writing, or orally in accordance with section 1118.

You and your spouse may each still consult your own attorneys independently, before, during or after mediation, for advice on your own situation. Except in the case of a class or representative action, Evidence Code section 1129(a) requires an attorney representing a client participating in a mediation or a mediation consultation to provide the client, as soon as reasonably possible before the client agrees to participate, with a printed disclosure containing the confidentiality restrictions described in section 1119, and to obtain a printed acknowledgment signed by the client stating that the client has read and understands them. An attorney retained after an individual agrees to participate must comply as soon as reasonably possible after being retained (section 1129(b)). Under section 1129(c), 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, and must include the names of the attorney and the client and be signed and dated by both.

Transformative Mediation: Focusing on Communication and Empowerment

Transformative mediation treats the conversation itself as the main work. Rather than steering toward a particular settlement, the mediator focuses on helping each spouse make clear decisions for themselves and recognize the other's point of view.

The goal is to shift the quality of the interaction, not only to produce a signed document. If you and your spouse tend to talk past each other, a transformative mediator may slow things down, follow where the conversation goes, and reflect back what each of you is saying so it is actually heard. An agreement may come out of that, but the mediator does not push for one.

This approach may matter most when you will keep dealing with each other for years, as parents usually do. If you are trying to picture how a shared parenting relationship works after the divorce, the page on co-parenting mediation goes deeper. The mediator stays neutral throughout and does not advocate for either spouse.

A different style of conversation does not change the legal requirements. Any agreement you reach is still subject to California's disclosure rules described above, and to court approval where the law requires it. Child support is one example, covered in the section on what mediation can resolve.

Court-Connected Mediation in California: Child Custody Recommending Counseling

Court custody mediation works differently from private mediation. Under Family Code section 3170(a), if it appears on the face of a petition, application or other pleading to obtain or modify a temporary or permanent custody or visitation order that custody, visitation or both are contested, the court shall set the contested issues for mediation. Family Code section 3160 requires each superior court to make a mediator available.

In San Diego County, that mediation is child custody recommending counseling with Family Court Services of the Superior Court of California, County of San Diego, under Family Code sections 3170 and 3183. Family law cases in the county are heard by that court.

The court's counselor can do something that, as explained above, a private mediator generally cannot. Under Family Code section 3183(a), except as provided in section 3188, the mediator may, consistent with local court rules, submit a recommendation to the court about custody or visitation, if the mediator has first provided the recommendation in writing to the parties and their attorneys 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. According to Family Court Services, if no agreement is reached, the counselor makes a recommendation and the court hearing proceeds. The judge decides.

Domestic violence cases are handled differently. Family Code section 3170(b) provides that Family Court Services handles them in accordance with a separate written protocol approved by the Judicial Council.

The confidentiality rules are different, too. As noted earlier, the Evidence Code's mediation chapter, including sections 1119 and 1123, does not apply here. Instead, Family Code section 3177 provides that these proceedings are held in private and are confidential, and that communications from the parties to the mediator in the proceeding are treated as official information under the Evidence Code.

Private mediation and the court's process can both be part of one family's story. A couple might resolve property and support privately while custody is set for the court's mediation, or might reach a full parenting agreement privately before any custody dispute is filed. The pages on child custody mediation and on disagreements about custody explain those paths in more detail. Simple Divorce Mediation is a private practice and has no connection to Family Court Services or the court.

What Mediation Can and Cannot Resolve in a California Divorce

Private mediation can address issues such as property division, spousal support, child support and parenting arrangements. The legal rules below are some that matter in those discussions.

Property. California is a community property state. Under Family Code section 2550, in a proceeding for dissolution of marriage or for legal separation, the court divides the community estate equally, except upon the written agreement of the parties, on oral stipulation of the parties in open court, or as otherwise provided in that division of the Family Code. Because a written agreement of the spouses is one of those exceptions, spouses in mediation can agree in writing on a different division.

Separate-property reimbursement. Family Code section 2640(b) reimburses a spouse for contributions to the acquisition of community property, to the extent the spouse traces them to a separate-property source, unless that spouse has made a written waiver of the right to reimbursement or signed a writing that has the effect of a waiver. Contributions include downpayments, payments for improvements, and payments that reduce the principal of a loan used to buy or improve the property. They do not include interest, maintenance, insurance or taxes. The reimbursement is paid without interest or adjustment for change in monetary values and may not exceed the net value of the property at the time of the division.

Businesses. A business's value can include goodwill, and its value is decided on the evidence, often with experts.

Child support. 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. 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 the agreed amount; and the right to support has not been assigned to the county and no public assistance application is pending. The page on child support mediation covers this further.

Disclosure. Mediation does not remove the duty to serve the declarations of disclosure under Family Code sections 2104 and 2105, described above.

Timing. Mediation does not shorten the waiting period. Under Family Code section 2339, subject to subdivision (b) and to sections 2340 to 2344, no judgment of dissolution is final for the purpose of terminating the marriage relationship until six months have expired from the date of service of a copy of summons and petition or the date of appearance of the respondent, whichever occurs first, and the court may extend the six-month period for good cause shown.

Safety. Mediation may not be right for every couple. Where there has been domestic violence, coercion or a protective order, safety comes first.

Choosing a Mediation Approach: What Shapes the Decision

The kind of disagreement often points toward an approach. A dispute over a complex property picture may call for a lot of structured information-gathering. A disagreement over parenting time may turn more on how the two of you talk to each other. Support questions sit somewhere between.

The role you want the mediator to play is a real distinction. Some couples want a mediator who will offer a view of likely outcomes, which is closer to the evaluative model. Others prefer to generate options themselves with a guide keeping the process fair, which is the facilitative model. If repairing communication for years of co-parenting is a priority for both of you, the transformative focus may speak to that. Many mediators blend these styles, and the labels describe tendencies more than fixed rules.

Whether custody is contested in a court case is a separate question. If it is, Family Code section 3170 requires the court to set those issues for its own mediation, which is separate from private mediation.

Confidentiality works the same way across the private models. Evidence Code section 1119 generally protects what is said, and Evidence Code section 1123 allows a signed written settlement agreement to be admitted or disclosed in the situations it lists. If you are also comparing mediation with other out-of-court options, the page on mediation versus collaborative divorce sets them side by side.

Mediation may be a good fit depending on the couple and the issues. It may be faster, less costly or less stressful than going to court for some couples, but that depends on the couple and the issues and is not something anyone can promise. Where domestic violence, coercion or a protective order is part of your situation, mediating with the other spouse is not something to be encouraged. Safety comes first. The California Courts self-help site has general information on divorce and related court processes.

Schedule a Joint Mediation Consultation

Where there has been domestic violence, coercion or a protective order, safety comes first, and mediating with the other spouse is not something to be encouraged. For the local process, the page on the San Diego mediation process is a useful next read.

To talk with the practice about the types of divorce mediation, you and your spouse 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.