Who Can Attend Divorce Mediation?

In a private California divorce mediation, the people who attend are you, your spouse and a neutral mediator. Either of you may also bring your own lawyer. Anyone else, such as a friend, a relative or a financial professional, takes part only if both of you and the mediator agree. The court's custody mediation follows different rules.

Most people facing this question are trying to picture the first session before they agree to it. One spouse may be wondering whether it is all right to walk in without a lawyer. The other may want a sister or a close friend nearby. Some couples are not sure whether the mediation they have heard about is the one the court orders when parents disagree about the children. Each of these is a fair question, and the answers shape how comfortable you and your spouse feel saying yes to mediation at all.

This article walks through who belongs in a California divorce mediation, what each person's role is, how confidentiality applies to the people who take part, and how the court's custody process differs. The core idea is simple: mediation belongs to the two spouses, and everyone else is there to support that conversation, not to take it over.

What California Law Says About Who May Attend Mediation

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 "disputants" in a divorce are the two spouses. That one sentence explains why the spouses are always the center of the process. Mediation is their conversation, and any agreement is theirs to accept or decline.

The same section, in subdivision (b), defines a mediator as "a neutral person who conducts a mediation." It adds that the term includes anyone the mediator designates to assist in the mediation or to communicate with the participants in preparation for it. So the law itself recognizes that more than one neutral person can be involved, but each of them serves the mediation, not one spouse.

This is true whether a couple meets with a mediator in San Diego County or uses online divorce mediation from elsewhere in California. The roles stay the same. What changes is only how the conversation is held.

There is one distinction to keep in mind from the start. California has two very different things that are both called "mediation":

• Private divorce mediation, which spouses choose. It can cover any issue in the divorce: property, support, custody and the rest. The Evidence Code's mediation chapter, starting at section 1115, governs its confidentiality.
• The court's child custody mediation, which Family Code section 3160 requires each superior court to make available, and which the court sets when custody or visitation is contested. Under Evidence Code section 1117(b), the Evidence Code's mediation confidentiality chapter does not apply to those court proceedings. They are instead held in private and kept confidential under Family Code section 3177.

Who attends, what the mediator may do, and what stays confidential differ between the two. A longer comparison appears in private versus court mediation, and the court process is covered in its own section below.

The Mediator's Role: Neutral Facilitator, Not Decision-Maker

A mediator, under Evidence Code section 1115, is a neutral person who helps both spouses communicate so they can reach an agreement they both accept. The word "neutral" carries a great deal of weight here. The mediator does not represent either spouse, does not advocate for either spouse, and does not protect one spouse's interests against the other's.

The mediator is also not either spouse's lawyer. Even when a mediator explains how a rule works, that explanation is offered to both of you equally and is not legal advice tailored to one side. A spouse who wants advice about their own position can have a lawyer of their own for that.

Most importantly, the mediator does not decide anything. If you and your spouse reach agreement on an issue, the agreement is yours. If you do not, the mediator does not choose for you. Issues the spouses cannot settle are decided by a judge, and that includes custody: in any court case, the judge decides custody and visitation.

The court's custody process works differently on one point that often confuses parents. Under Family Code section 3183(a), the court's custody mediator may, in some circumstances, submit a recommendation to the court. That person is called a child custody recommending counselor, and that role is explained more fully below. A private divorce mediator plays no such role. The confidentiality disclosure set out in Evidence Code section 1129 states that a mediator's report, opinion, recommendation or finding about what occurred in a mediation may not be submitted to or considered by a court. For a fuller picture of how the private process unfolds, see the San Diego mediation process.

Attorneys at Mediation: What Their Presence Means

Either spouse may have a lawyer of their own in a California divorce mediation. Nothing requires it, and nothing forbids it. Some couples mediate without lawyers present and consult one between sessions. Others have a lawyer attend some or all of the sessions. Both spouses can make this choice independently.

A lawyer who attends represents only the spouse who hired them. The lawyer does not represent both spouses, and does not represent the mediation itself. In the room, the attorney's job is to advise their own client: to explain how a proposal may affect that spouse, to answer legal questions, and to help that spouse think through options. The attorney does not speak for the mediator, and mediation is not a place for adversarial argument. The goal is still an agreement both spouses accept. This structure is described further in attorney-assisted divorce mediation.

Except in a class or representative action, Evidence Code section 1129 places a specific duty on a lawyer whose client takes part in mediation. As soon as reasonably possible before the client agrees to participate in the mediation or a mediation consultation, the attorney must give the client a printed disclosure of the confidentiality restrictions in section 1119 and obtain the client's signed acknowledgment that they have read and understand them. If the attorney is retained after the client has already agreed to participate, the attorney must do this as soon as reasonably possible after being retained. The disclosure must be in the client's preferred language, in at least 12-point font, on a single page not attached to any other document, and must include the names of the attorney and client and be signed and dated by both.

You may also hear the term "attorney-mediator." In general terms, that is a person trained as both a lawyer and a mediator who serves as the neutral in a mediation. When acting as the mediator, that person is still neutral and does not represent either spouse.

Support Persons and Third Parties: When Someone Else May Be Present

The worry behind this question is often a quiet one: a spouse who feels steadier with a familiar person nearby, or a couple who knows the finances are tangled and wants help understanding them. The Evidence Code's mediation sections do not give a friend, relative or other third party a right to attend a private divorce mediation, or a right to speak in one. Attendance by anyone besides the spouses and their own lawyers is something both spouses and the mediator agree on together.

A support person, such as a friend or family member, may attend only if both spouses and the mediator agree. Even with agreement, the support person is not a participant in the negotiation in the way the spouses are. The spouses remain the decision-makers.

A financial neutral or other professional, such as someone who helps both spouses organize financial information, may participate if both spouses and the mediator agree to that person's role. When this happens, the role is usually defined clearly so both spouses understand whom the professional is working for.

Adding anyone to the room can change the feel of the conversation. It can also bear on confidentiality. For example, Evidence Code section 1122(a)(1) provides that a mediation communication loses its protection if all persons who conduct or otherwise participate in the mediation expressly agree to its disclosure, in writing or orally as the law permits. Because of questions like these, a mediator typically addresses who is attending, and why, at the outset.

Confidentiality and Who Is Covered by It

Evidence Code section 1119 sets the general rule, and it applies except as the rest of the mediation chapter otherwise provides. Under that section, evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to a mediation or mediation consultation is not admissible or subject to discovery in civil and other noncriminal proceedings where testimony can be compelled, and disclosure cannot be compelled. Writings prepared for the mediation are treated the same way. In the statute's words, "All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential."

That protection reaches the participants: the spouses, the mediator, and attorneys who take part. It is strong, but it is not absolute. The chapter contains exceptions, including those in section 1122, and the one couples most need to understand is in section 1123.

Under Evidence Code section 1123, a written settlement agreement prepared in the course of, or pursuant to, a mediation is not made inadmissible or protected from disclosure by the mediation chapter if the spouses sign it and 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 to the agreement expressly agree, in writing or orally as section 1118 allows, to its disclosure; or
• the agreement is used to show fraud, duress or illegality relevant to an issue in dispute.

So a mediated settlement agreement is not always private and not always inadmissible. An agreement written to be binding is meant to be usable.

Two related points round this out. First, 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. That definition describes a specific relationship; it does not make every phone call about mediation a protected communication. Second, as noted earlier, none of these Evidence Code rules apply to the court's custody mediation, which has its own confidentiality rule under Family Code section 3177.

Confidentiality also does not change the duty of financial disclosure. Each spouse still exchanges sworn declarations of disclosure, and the FAQ below explains the timing.

Court-Ordered Custody Mediation: A Different Process with Different Participants

Family Code section 3170(a) is direct: if a petition, application or other pleading to obtain or modify a temporary or permanent custody or visitation order shows that custody, visitation or both are contested, "the court shall set the contested issues for mediation." Unlike private divorce mediation, this step is not one the parents simply choose.

In San Diego County, that court process is child custody recommending counseling through the Family Court Services of the Superior Court of California, County of San Diego (Family Code sections 3170 and 3183). It concerns custody and visitation, and the people involved are the parents, the court's counselor and, where present, the parties' attorneys and any counsel for the children.

Family Code section 3183(a) gives the court's mediator a power a private mediator does not have. Except as provided in section 3188, the mediator may, consistent with local court rules, submit a recommendation to the court about custody or visitation, but only if the mediator has first given the parties and their attorneys, including counsel for any minor children, the recommendations in writing before the hearing. The court must ask at the hearing whether they received them. A mediator with that authority is called a "child custody recommending counselor"; San Diego's 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. Either way, the judge decides.

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

These proceedings are held in private and are confidential under Family Code section 3177, which also treats the parties' communications to the mediator as official information under the Evidence Code. Evidence Code sections 1119 and 1123 do not govern them.

Simple Divorce Mediation is a private practice and has no connection to the court, Family Court Services or any government program. More on how the court process works for parents is in child custody mediation.

When Mediation May Not Be Appropriate

If you are in immediate danger, call 911.

Safety comes first, and mediation may not be right for every couple. Where there has been domestic violence, coercion or a protective order between spouses, sitting down to negotiate with the other spouse can raise serious concerns, and no one in that situation should feel pressed to mediate. A person who has experienced abuse or control in the marriage is often the one who understands that risk most clearly.

Within the court's custody process, the law already treats these cases differently. Family Code section 3170(b) provides that domestic violence cases are handled by Family Court Services in accordance with a separate written protocol approved by the Judicial Council.

The question of who attends matters here too. A spouse's own attorney, and the court's own procedures, exist independently of any private mediation. For a closer look at the situations where mediation may not fit, see when mediation is not appropriate.

If You'd Like to Talk Through Who Will Be Part of Your Mediation

Questions about attendance are rarely only about logistics. They touch on whether each spouse will have a lawyer, whether someone else's presence will help or complicate things, how confidentiality works for the people in the conversation, and whether custody questions might also be headed to the court's process. Raising these early can help you and your spouse decide whether mediation fits, whether you are in San Diego County or elsewhere in California through online mediation. The mediator remains neutral throughout and does not represent either of you.

If you and your spouse would like to explore whether mediation fits your situation, 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.