What Does a Divorce Mediator Do in California?

A divorce mediator in California is a neutral person who helps you and your spouse talk through the decisions your divorce requires (property, support, custody and parenting) so you can reach an agreement you both accept. The mediator does not represent either of you, does not act as anyone's lawyer, and does not decide anything for you.

You may be wondering whether a mediator works like a judge or like a lawyer. Some readers come to this page alone, reading on behalf of both spouses. Others read it together.

This article explains the role in plain terms. It covers what a mediator does and does not do under California law, which issues mediation can cover, how far confidentiality reaches, and how private divorce mediation differs from the court's custody mediation. Simple Divorce Mediation mediates California divorces for couples in San Diego County and, through online mediation, for couples anywhere in California.

What a Divorce Mediator Does — and Does Not Do

Evidence Code section 1115 defines the role. 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." A mediator is "a neutral person who conducts a mediation." Put simply, the mediator helps you and your spouse communicate so you can reach an agreement you both accept.

That definition carries several limits.

• The mediator is neutral. A mediator does not represent, advocate for or protect either spouse. Both of you are in the same process with the same neutral person.
• The mediator is not anyone's lawyer. Even when a mediator has legal training, the mediator is not acting as a lawyer for either of you in the mediation. A separate article explains the general role of an attorney-mediator in California.
• The mediator decides nothing. No ruling is made, no side is chosen, and no agreement exists unless both of you accept it.
• The mediator generally does not report back to a judge on how things went. Evidence Code section 1121 generally bars a mediator from submitting, and a court from considering, any report, assessment or recommendation about the mediation. A report required by court rule or other law that says only whether an agreement was reached is allowed, and so is anything all parties expressly agree to in writing, or orally in accordance with Evidence Code section 1118.
• The mediator generally cannot be a witness. Under Evidence Code section 703.5, a mediator generally is not competent to testify in a later civil proceeding about what was said or done in the mediation, with exceptions the section lists. The section does not apply to a mediator in the court's custody mediation under Chapter 11 of Part 2 of Division 8 of the Family Code (commencing with section 3160). More detail is in the article on whether a mediator can testify.

Either of you may have your own lawyer during mediation. Some couples do and some do not. Neither of you is required to have one, and neither of you is barred from having one. The difference between the two roles is laid out in divorce mediator vs. divorce lawyer.

One more distinction matters from the start. Private divorce mediation, which couples choose and arrange themselves, is a separate process from the court's child custody mediation through Family Court Services. The last section of this article covers the court process in detail.

Can a Divorce Mediator Give Legal Advice or Handle Divorce Paperwork?

People often ask whether a divorce mediator can give legal advice, file divorce papers or finalize a divorce. Two California statutes bear on the first part of that question, and the court's role answers the last part.

Business and Professions Code section 6125 provides: "No person shall practice law in California unless the person is an active licensee of the State Bar." The section does not mention mediators.

Legal document assistants are defined and regulated separately, in Business and Professions Code section 6400. In general terms, a legal document assistant is a person, not exempted under section 6401, who provides a "self-help service" for compensation to a member of the public who is representing themselves in a legal matter. Self-help services include completing legal documents in a ministerial manner at the specific direction of the person representing themselves, and filing and serving legal forms and documents at that person's specific direction. A legal document assistant may not provide "any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms, or strategies," and may not provide a self-help service for compensation unless registered under section 6402.

Neither section addresses whether a mediator may prepare or file court papers. Finalizing a divorce is the court's step: see the waiting-period section below.

What Topics Mediation Can Cover in a California Divorce

A private divorce mediation can address the issues a divorce involves, such as dividing property and debts, spousal support, child support, and a parenting plan for custody and visitation. The law that would apply in court still frames each topic, even though you and your spouse are the ones deciding.

Community property. Community property is, in general terms, property a married person acquired during the marriage while domiciled in California (Family Code section 760). Under Family Code section 2550, the court divides the community estate equally, except where the spouses make a written agreement or an oral stipulation in open court, or where the Family Code otherwise provides. That written-agreement exception is part of why a mediated agreement can shape how property is divided.

Separate-property reimbursement. Family Code section 2640(b) addresses a common situation: one spouse used money from a separate-property source to help acquire community property. Unless that spouse has made a written waiver of the right, or signed a writing that has the effect of a waiver, the spouse is reimbursed for contributions traced to the separate-property source. Reimbursement is paid without interest or adjustment for changes in the value of money, and it may not exceed the net value of the property at the time of the division. "Contributions" means downpayments, payments for improvements, and payments that reduce the principal of a loan used to buy or improve the property. It does not include interest, maintenance, insurance or taxes.

Valuation. Under Family Code section 2552, the court values assets and debts as near as practicable to the time of trial. For good cause, and on 30 days' notice by the moving party to the other party, the court may use a date after separation and before trial. Where a business is involved, its value can include goodwill. That value is decided on the evidence, often with the help of experts.

Spousal support. Mediation can address whether either spouse will pay support, how much, and for how long. You and your spouse work these questions out together with the mediator's help.

Custody and parenting. Parents may reach their own agreement on a parenting plan in private mediation. When custody or visitation is contested in a court filing, though, Family Code section 3170 requires the court to set the contested issues for mediation. In San Diego County, that court process is child custody recommending counseling with Family Court Services. The two processes stay separate.

Child support. Parents may agree on child support, but Family Code section 4065(a) makes the agreement subject to the court's approval, unless federal law prohibits it. 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 best interests of the children; the children's needs will be adequately met by the stipulated amount; and the right to support has not been assigned to the county and no public assistance application is pending.

Financial disclosure still applies. Mediating 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. Those time periods may be extended by written agreement of the parties or by court 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. 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 spouses 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. A waiver of the final declaration must be mutual. It must be executed under penalty of perjury in open court or by separate stipulation and must include the representations Family Code section 2105(d) lists.

How Mediation Confidentiality Works Under California Law

Evidence Code section 1119 sets the general rule. Except as the Evidence Code's mediation chapter otherwise provides, anything said, and any writing prepared, for the purpose of, in the course of, or pursuant to a mediation or a mediation consultation is not admissible or subject to discovery in an arbitration, administrative adjudication, civil action or other noncriminal proceeding in which testimony can be compelled. Confidentiality is broad, but it is not absolute.

One exception concerns the agreement itself. Under Evidence Code section 1123, a written settlement agreement prepared in mediation and signed by the settling parties is not made inadmissible or protected from disclosure by the mediation chapter if any of these conditions is met:

• 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 under the Evidence Code's rules, to its disclosure; or
• the agreement is used to show fraud, duress or illegality relevant to an issue in dispute.

So a signed mediated agreement that says it is enforceable or binding can be admitted or disclosed.

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.

If either of you hires a lawyer for the mediation, Evidence Code section 1129 places a duty on that lawyer, except in a class or representative action. The lawyer must give the client a printed disclosure of the section 1119 confidentiality restrictions, and obtain the client's signed acknowledgment, as soon as reasonably possible before the client agrees to participate in the mediation or a mediation consultation. If the lawyer is retained later, the lawyer must do this as soon as reasonably possible after being retained. This model, where each spouse may have a lawyer advising only them, is described in attorney-assisted divorce mediation.

These Evidence Code rules do not reach the court's custody mediation. Evidence Code section 1117(b) states that the mediation chapter does not apply to proceedings under the Family Code's custody mediation chapter, which begins at Family Code section 3160. Those court proceedings are held in private and are confidential under Family Code section 3177.

The Six-Month Waiting Period and Other California Divorce Requirements

Family Code section 2339 sets a waiting period that mediation does not change. Subject to the exceptions the Family Code provides, 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.

It helps to see mediation as one piece of a court case rather than a way around it. Mediation produces an agreement. The court still enters the judgment. The disclosure rules described earlier still apply, and agreements on child support still need court approval.

Where a case is filed depends on the spouses' circumstances, such as where they live. For couples who file in San Diego County, family law cases are heard by the Superior Court of California, County of San Diego, which serves communities across the county, including Carlsbad, Encinitas and Oceanside. The California Courts Self-Help Guide and the Superior Court of San Diego County website explain court filing steps. A walkthrough of how these pieces fit together locally is in the San Diego divorce mediation process.

Some couples qualify for a simpler court procedure called summary dissolution. Its eligibility limits, including dollar limits, are set by statute and adjusted periodically under Family Code section 2400(b). The current figures are computed and published by the Judicial Council.

When Mediation May Not Be the Right Path

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. Mediation is a process built on two people speaking freely and agreeing willingly. When one spouse is afraid of the other, or is being pressured, those conditions may not exist, and no one in that situation is encouraged to mediate with the other spouse.

The court process recognizes this too. Under Family Code section 3170(b), domestic violence cases are handled by Family Court Services in accordance with a separate written protocol approved by the Judicial Council.

Mediation also depends on both spouses choosing to take part and sharing financial information honestly. If one spouse will not take part, or will not disclose, an agreement both of you accept is hard to reach. It is normal to feel unsure whether your own situation fits. Mediation may be faster, less expensive or less stressful than going to court for some couples, depending on the couple and the issues, though results vary and no particular outcome can be promised.

Private Divorce Mediation and the Court's Custody Mediation: Two Distinct Processes

Two different things in California are called "mediation," and parents often confuse them. Family Code section 3160 requires each superior court to make a mediator available. Under Family Code section 3170, when a court filing shows that custody, visitation or both are contested, the court must set those contested issues for mediation. In other words, not all family law mediation is voluntary.

In San Diego County, that court process is child custody recommending counseling with Family Court Services. 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 the mediator first gives the recommendation in writing to the parties and their attorneys, including counsel for any minor children, before the hearing. A mediator with that authority 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 counselor's recommendation can matter to the outcome, and the judge decides custody.

Private divorce mediation works differently. It is arranged by the spouses, can address the issues in the divorce, and is governed by the Evidence Code's confidentiality rules in sections 1119 and 1123. The court's custody mediation is confidential under Family Code section 3177 instead. Simple Divorce Mediation is a private practice and is not connected to the court, Family Court Services or any government program. A side-by-side comparison is in private vs. court divorce mediation.

If You'd Like to Talk With the Practice About Mediation

Knowing what a mediator does in general is different from deciding whether to mediate. A conversation with the practice can be a place to ask general questions about how mediation works and what it can address, for couples in San Diego County or, online, anywhere in California. It will not decide anything for you or predict a result, and either of you remains free to have your own lawyer.

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

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