At California Arbitration & Mediation Services in Inland Empire, CA, we have more than a decade of experience helping individuals deal with issues like asset division and child custody and support. Our fully licensed, bonded, and insured services are designed to get you through this difficult situation as smoothly as possible.
For many years, whenever the word “mediation” was used in the context of family law, parties (and even sometimes, lawyers) cringed. The problems with the process related to the term “mediation” in family law cases are many. This short essay will address but a few and will happily announce the slaying of the boogeyman.
Mediation is a special process designed to help disputing parties arrive at a resolution of whatever may be in dispute without having to resort to public trials, open hearings, the incredible costs of litigation and the overwhelming inconvenience and confusion the court system presents. Unfortunately, many years ago someone decided that in every family law case in which there were children, the matter must be “mediated” by a “mediator” who works for the Family Court Services (“FCS”). This intention was good. It was created to try intended to remove the drama and uncertainty from the issues surrounding child custody and visitation. The problem is there was little resemblance between FCS “mediation” and actual mediation.
The professionals in FCS–who have worked hard to provide a service to the public–have been dreadfully overworked. In spite of being trained in the concepts of mediation, the demands upon them and the time constraints inflicted upon them by the sheer number of family law litigants eventually transformed the process into one of dissatisfaction and sometimes outright trauma for the parents. True mediation takes time and requires the voluntary participation of the parties. Since FCS was mandated in all cases involving children, FCS mediation was never voluntary. In counties where the FCS mediators made recommendations to the courts describing what the mediator believed was the custody and visitation arrangement, the confidentiality and sanctity of mediation was nonexistent. If a parent attended FCS mediation involuntarily and then had no opportunity to have his or her story heard and understood by the overtaxed “mediator,” sometimes frustration with the process translated into a lack of cooperation or a poor attitude when the report from the FCS mediator made its way to the Judge. The result was the perceived stripping of the due process rights from the family law litigants.
The parties could reject the recommendation of the FCS mediator but just as Family Court Services are overburdened, California bench officers (judges and commissioners) in the family courts suffer with overwhelming caseloads and calendars that are unmanageable. A recent study indicated that the average time a litigant (all of the cases filed and heard in a one-year timeframe divided into the number of Family Court hours available to those litigants) would have before a judicial officer in the entire course of his or her case was something around twenty minutes, TOTAL. On a day in Family Court in which the bench officer must hear as many as 40 cases between 8:30 a.m. and noon, one can see how limited the time might be. Even the most conscientious judicial officer may occasionally rely too heavily upon the recommendation of the FCS mediator. I am told that in some courts there is a 95%, or more, probability that a bench officer will adopt the FCS recommendation in whole or in substantial part notwithstanding objections by the litigants. Add to this the fact that the vast majority of family law litigants are self-represented without the experience or wherewithal to challenge such a recommendation at trial, one should be able to see that the word “mediation” in family law settings is not well received by the parties.
Fortunately, beginning in 2012, the California courts no longer refer to the FCS process as “mediation.” As of January 2012 the process is known as Child Custody Recommending Counseling (CCRC). There is no longer any suggestion this process is mediation.