The Boogeyman of California Family Law
by Don Cripe

June 2013
Don Cripe

For most of my 25 years as a trial lawyer (a substantial portion of which included family law matters), 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 endeavor was laudable. It was created to try to remove the drama and uncertainty from the issues surrounding child custody and visitation. The problem is that this process no more resembled mediation than an ice cream cone resembles a Buick.

In virtually every court in which I have practiced the professionals in FCS–who have worked very hard to provide a service to the public–have been dreadfully overworked. In spite of being generally 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 litigants and, I suggest, the FCS staff, as well. 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 truly voluntary. Additionally, in the counties (such as those in which I have practiced) where the FCS mediators made recommendations to the courts describing what the mediator believed was the appropriate custody and visitation arrangement, the confidentiality and sanctity of mediation was nonexistent. Consequently, if a parent attended FCS mediation involuntarily and then did not have an 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 judicial officer. The result, then, was the perceived stripping of the due process rights from the family law litigants.

It is true that the parties could reject the recommendation of the FCS mediator but just as Family Court Services are overburdened, in 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 less than twenty minutes, TOTAL. On a day in Family Court in which the bench officer has to hear as many as 40 cases between 8:30 AM and noon, one can see how limited the time might be. Consequently, even the most conscientious judicial officer may occasionally rely too heavily upon the recommendation of the FCS mediator. I am told that in some venues 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 that this process is mediation.