The Family Court in San Diego County, California requires parents in a custody dispute to attend mediation at Family Court Services (FCS). At FCS, the parents meet with a social worker who tries to broker a parenting agreement between the parties. However, if no agreement can be reached, the mediator makes a recommendation to the Court. This recommendation is often “rubber-stamped" by the Judge as the Court’s order. Sometimes an attorney can argue to change certain provisions in the recommendation, but only very rarely are the recommendations ignored. “Mediation" is a bit of a misnomer for the process because FCS really acts as an arbitrator. Because the process is not confidential empowering the social worker to make a recommendation, the parties need to take it very seriously and prepare.
Because the judges rely very heavily on the recommendations of the mediator, you should prepare for the mediation as though you were preparing for trial. In fact, you need to prepare more thoroughly for mediation than you would for trial, because your attorney is not allowed to be present during the mediation to assist you.
The following is a list of points to keep in mind when you prepare for the appointment.
1. Before the Appointment:
a. You can attend the weekly orientation, which is held the third Tuesday of the month from 12:00 to 1:00 p.m., and the first Thursday of the month at 4:00 p.m. at the Family Court, 1555 Sixth Avenue, between Beech and Cedar Streets in downtown San Diego (optional). No appointment is necessary, meetings are on a first come first serve basis.
b. Arrive on time for the mediation appointment. You will be asked to fill out a Mediation Data Sheet.
c. Make an appointment to see your attorney, so you can prepare your presentation, and bring with you a list of important points that you wish to make.
2. During the Appointment:
a. First impressions are important. Mediators are human beings too, and although they try to remain neutral, they cannot help but be influenced by their first impressions of people. You should present yourself as the parent who puts the best interest of the child ahead of your own interests.
b. If the other parent makes accusations about you to the mediator that you think are irrelevant, wait for an opening and then ask the mediator if you may respond. Then be guided by the mediator=s response. If you are being interrupted by the other parent, ask the mediator to stop the interruptions.
c. Try to stay Aon [email protected]. Do not be drawn into an argument with the other parent about your past relationship. The task is to determine a parenting plan that is in the best interest of the children.
d. The mediator will question the parent who wants to restrict the other parent=s time with the children. You will be asked to give reasons for your views. In order to limit visitation, you must show that some harm to the children would result.
e. The mediator is not there to discuss financial issues with the parents such as child or spousal support.
f. Remember that the mediator is not a therapist, and nothing that is said by either parent can remain confidential. If child abuse is disclosed during the mediation session, the mediator has a legal obligation to make a report to Child Protective Services.
g. If you or the children were physically abused, or if the other parent alleges that you committed such abuse, the mediator must meet with the parents separately upon the request of either party. This request should be made known before the meeting begins. If allegations of physical abuse are present, these should be discussed with your attorney before the mediation appointment.
h. You should be prepared to substantiate allegations of drug or alcohol abuse. Criminal convictions or arrests are the best evidence, and you should have documents available. The court file can be copied and made available to the mediator. The drug or alcohol abuser will usually deny the problem. You can request that the other parent submit to monitored drug testing.
i. Do not make an agreement that makes you uncomfortable. The mediator may try to pressure you into agreeing by saying that is what he or she will recommend anyway. You can say that you want to discuss it with your attorney first. If you agree in mediation, it is almost impossible to get out of your agreement. If you do not agree, you can review the written recommendation before court and agree to it at that time, if you wish to do so.
3. After the Appointment:
a. Be sure to write down the name of the mediator and give it to your attorney in case they need to be contacted.
b. Please telephone your attorney to let him/her know the outcome of your mediation. In that way, if an important point needs to be clarified, he/she can set up a telephone conference with the mediator before the mediator writes his/her report.
c. The mediator=s written report will be available on the day of the hearing, or before. Sometimes it is mailed to your attorney’s office before the hearing. You will have an opportunity to review the report before the hearing if you are present in court.
Should you have any questions or concerns regarding the mediation, do not hesitate to contact your attorney.
4. FCS Prep Coaching.
If you feel you need additional coaching prior to an FCS appointment and you have the funds to pay for it, we highly recommend it. There are a number of former FCS mediators who can help prepare you and coach you for your mediation appointment. We have had good success with such coaching. The mediation prep coach can role-play with you. You can bounce ideas off the coach and he or she can advise you about how an FCS mediator would react. If you need a referral to such a coach, ask your attorney.
In summary, you need to take your FCS mediation seriously. This is where the rubber meets the road in your custody case. The mediator’s report usually sets the tone for how your entire custody case will go. A bad report can be disastrous. So, prepare, prepare, prepare!