This rule of court is adopted under article VI, section 6 of the California Constitution and Family Code sections 211, 3160, and 3162(a).
This rule sets forth standards of practice and administration for court-connected child custody mediation services that are consistent with the requirements of Family Code section 3161.
(1) "Best interest of the child" is defined in Family Code section 3011.
(2) "Parenting plan" is a plan describing how parents or other appropriate parties will share and divide their decision making and caretaking responsibilities to protect the health, safety, welfare, and best interest of each child who is a subject of the proceedings.
(d) Responsibility for mediation services.
(1) Each court must ensure that:
(A) Mediators are impartial, competent, and uphold the standards of practice contained in this rule of court.
(B) Mediation services and case management procedures implement state law and allow sufficient time for parties to receive orientation, participate fully in mediation, and develop a comprehensive parenting plan without unduly compromising each party's right to due process and a timely resolution of the issues.
(C) Mediation services demonstrate accountability by:
(i) Providing for acceptance of and response to complaints about a mediator's performance;
(ii) Participating in statewide data collection efforts; and
(iii) Disclosing the use of interns to provide mediation services.
(D) The mediation program uses a detailed intake process that screens for, and informs the mediator about, any restraining orders or safety-related issues affecting any party or child named in the proceedings to allow compliance with relevant law or court rules before mediation begins.
(E) Whenever possible, mediation is available from bilingual mediators or other interpreter services that meet the requirements of Evidence Code sections 754(f) and 755(a) and section 18 of the California Standards of Judicial Administration.
(F) Mediation services protect, in accordance with existing law, party confidentiality in:
(i) Storage and disposal of records and any personal information accumulated during the mediation process;
(ii) Interagency coordination or cooperation regarding a particular family or case; and
(iii) Management of child abuse reports and related documents.
(G) Mediation services provide a written description of limitations on the confidentiality of the process.
(H) Within one year of the adoption of this rule, the court adopts a local court rule regarding ex parte communications.
(2) Each court-connected mediator must:
(A) Maintain an overriding concern to integrate the child's best interest within the family context;
(B) Inform the parties and any counsel for a minor child if the mediator will make a recommendation to the court as provided under Family Code section 3184; and
(C) Use reasonable efforts and consider safety issues to:
(i) Facilitate the family's transition and reduce acrimony by helping the parties improve their communication skills, focus on the child's needs and areas of stability, identify the family's strengths, and locate counseling or other services;
(ii) Develop a comprehensive parenting agreement that addresses each child's current and future developmental needs; and
(iii) Control for potential power imbalances between the parties during mediation.
(Subd (d) amended effective January 1, 2007; previously amended effective January 1, 2002, and January 1, 2003.)
(e) Mediation process.
All court-connected mediation processes must be conducted in accordance with state law and include:
(1) Review of the intake form and court file, if available, before the start of mediation;
(2) Oral or written orientation or parent education that facilitates the parties' informed and self-determined decision making about:
(A) The types of disputed issues generally discussed in mediation and the range of possible outcomes from the mediation process;
(B) The mediation process, including the mediator's role; the circumstances that may lead the mediator to make a particular recommendation to the court; limitations on the confidentiality of the process; and access to information communicated by the parties or included in the mediation file;
(C) How to make best use of information drawn from current research and professional experience to facilitate the mediation process, parties' communication, and co-parenting relationship; and
(D) How to address each child's current and future developmental needs;
(3) Interviews with children at the mediator's discretion and consistent with Family Code section 3180(a). The mediator may interview the child alone or together with other interested parties, including stepparents, siblings, new or step-siblings, or other family members significant to the child. If interviewing a child, the mediator must:
(A) Inform the child in an age-appropriate way of the mediator's obligation to disclose suspected child abuse and neglect and the local policies concerning disclosure of the child's statements to the court; and
(B) With parental consent, coordinate interview and information exchange among agency or private professionals to reduce the number of interviews a child might experience;
(4) Assistance to the parties, without undue influence or personal bias, in developing a parenting plan that protects the health, safety, welfare, and best interest of the child and that optimizes the child's relationship with each party by including, as appropriate, provisions for supervised visitation in high-risk cases; designations for legal and physical custody; a description of each party's authority to make decisions that affect the child; language that minimizes legal, mental health, or other jargon; and a detailed schedule of the time a child is to spend with each party, including vacations, holidays, and special occasions, and times when the child's contact with a party may be interrupted;
(5) Extension of time to allow the parties to gather additional information if the mediator determines that such information will help the discussion proceed in a fair and orderly manner or facilitate an agreement;
(6) Suspension or discontinuance of mediation if allegations of child abuse or neglect are made until a designated agency performs an investigation and reports a case determination to the mediator;
(7) Termination of mediation if the mediator believes that he or she is unable to achieve a balanced discussion between the parties;
(8) Conclusion of mediation with:
(A) A written parenting plan summarizing the parties' agreement or mediator's recommendation that is given to counsel or the parties before the recommendation is presented to the court; and
(B) A written or oral description of any subsequent case management or court procedures for resolving one or more outstanding custody or visitation issues, including instructions for obtaining temporary orders;
(9) Return to mediation to resolve future custody or visitation disputes.
(Subd (e) amended effective January 1, 2007; previously amended effective January 1, 2003.)
(f) Training, continuing education, and experience requirements for mediator, mediation supervisor, and family court services director.
As specified in Family Code sections 1815 and 1816:
(1) All mediators, mediation supervisors, and family court service directors must:
(A) Complete a minimum of 40 hours of custody and visitation mediation training within the first six months of initial employment as a court-connected mediator;
(B) Annually complete 8 hours of related continuing education programs, conferences, and workshops. This requirement is in addition to the annual 4-hour domestic violence update training described in rule 5.215; and
(C) Participate in performance supervision and peer review.
(2) Each mediation supervisor and family court services director must complete at least 24 hours of additional training each calendar year. This requirement may be satisfied in part by the domestic violence training required by Family Code section 1816.
(Subd (f) amended effective January 1, 2005; previously amended effective January 1, 2003.)
(g) Education and training providers.
Only education and training acquired from eligible providers meet the requirements of this rule. "Eligible providers" includes the Judicial Council and may include educational institutions, professional associations, professional continuing education groups, public or private for-profit or not-for-profit groups, and court-connected groups.
(1) Eligible providers must:
(A) Ensure that the training instructors or consultants delivering the education and training programs either meet the requirements of this rule or are experts in the subject matter;
(B) Monitor and evaluate the quality of courses, curricula, training, instructors, and consultants;
(C) Emphasize the importance of focusing child custody mediations on the health, safety, welfare, and best interest of the child;
(D) Develop a procedure to verify that participants complete the education and training program; and
(E) Distribute a certificate of completion to each person who has completed the training. The certificate must document the number of hours of training offered, the number of hours the person completed, the dates of the training, and the name of the training provider.
(2) Effective July 1, 2005, all education and training programs must be approved by Judicial Council staff in consultation with the Family and Juvenile Law Advisory Committee.
(Subd (g) amended effective January 1, 2016; adopted effective January 1, 2005.)
Mediation must be conducted in an atmosphere that encourages trust in the process and a perception of fairness. To that end, mediators must:
(1) Meet the practice and ethical standards of the Code of Ethics for the Court Employees of California and of related law;
(2) Maintain objectivity, provide and gather balanced information for both parties, and control for bias;
(3) Protect the confidentiality of the parties and the child in making any collateral contacts and not release information about the case to any individual except as authorized by the court or statute;
(4) Not offer any recommendations about a party unless that party has been evaluated directly or in consultation with another qualified neutral professional;
(5) Consider the health, safety, welfare, and best interest of the child in all phases of the process, including interviews with parents, extended family members, counsel for the child, and other interested parties or collateral contacts;
(6) Strive to maintain the confidential relationship between the child who is the subject of an evaluation and his or her treating psychotherapist;
(7) Operate within the limits of his or her training and experience and disclose any limitations or bias that would affect his or her ability to conduct the mediation;
(8) Not require children to state a custodial preference;
(9) Not disclose any recommendations to the parties, their attorneys, or the attorney for the child before having gathered the information necessary to support the conclusion;
(10) Disclose to the court, parties, attorneys for the parties, and attorney for the child conflicts of interest or dual relationships and not accept any appointment except by court order or the parties' stipulation;
(11) Be sensitive to the parties' socioeconomic status, gender, race, ethnicity, cultural values, religion, family structures, and developmental characteristics; and
(12) Disclose any actual or potential conflicts of interest. In the event of a conflict of interest, the mediator must suspend mediation and meet and confer in an effort to resolve the conflict of interest to the satisfaction of all parties or according to local court rules. The court may order mediation to continue with another mediator or offer the parties alternatives. The mediator cannot continue unless the parties agree in writing to continue mediation despite the disclosed conflict of interest.
(Subd (h) amended effective January 1, 2007; adopted as subd (g); previously amended effective January 1, 2003; previously relettered effective January 1, 2005.)
Rule 5.210 amended effective January 1, 2016; adopted as rule 1257.1 effective July 1, 2001; amended and renumbered as rule 5.210 effective January 1, 2003; previously amended effective January 1, 2003, January 1, 2005, and January 1, 2007.