Appearing recently at a child custody mediation (AKA child custody recommending counseling session) and trailing hearing I was reminded of two things:
(1) local rules matter and
(2) sometimes practicing law is a lot like playing poker
Whenever child custody is at issue California courts require parents to go to a mediator (AKA child custody recommending counselor) to try to reach an agreement. Mediation has a number of benefits including reducing litigation costs and allowing participants an opportunity to voice their concerns. Through local rules, the court in each county is allowed to create specific procedures in many areas and the courts in each county have significant discretion in determining what required mediation looks like.
In Los Angeles County, mediation procedures follow the spirit of Federal Rules of Evidence Rule 408 and California Evidence Code § 1152, which limit the admissibility of statements made in settlement discussions. The LA Rule of Court 5.19 (below, in pertinent part), provides that child custody mediators CANNOT testify in court about anything substantive. They can testify that mediation took place—or that a person committed a crime during mediator, but other than that—Nada. Zilch. This is commonly referred to as a “non-reporting” mediation scheme. In addition, parties are notified in advance who their mediators are and parties are allowed one Peremptory challenge if made adequately in advance. I can imagine LA County lawyers making lists of mediators with terms like father-friendly, whacko-crazy, and child-focused.
In stark contrast Ventura County’s mediation procedures deviate from this mantra of confidentiality. Ventura is a “recommending” or “reporting” jurisdiction. Under Ventura County Rule 9.30 (below, in pertinent part), not only can mediators testify…the practice is encouraged and mediators are allowed to make recommendations to the court even when the parties don’t agree to it. Parties are not advised of their mediator in advance and there are no Peremptory challenges.
So, I recently appeared at a mediation where the opposing counsel practices almost exclusively in Los Angeles County. First the opposing party stopped mediation and told the mediator she was biased. Then her counsel sought a Preemptory challenge of sorts (which even if made in LA County would need to have been made ten days before the mediation), then her counsel sought a new mediator based on bias (which would require a court order), then her counsel objected to the mediator being able to send a form over the judge saying what her client had done, and then she wanted to be present in mediation with her client (even though the rules of both counties don’t allow it). After all of this I advised opposing counsel that whatever the mediator recommends would be presented to the Judge, who would most likely adopt the recommendation without prejudice pending the hearing—that I wasn’t lying and wasn’t “sandbagging.” I got the impression that opposing counsel didn’t believe me and in a great game of “bluff,” opposing counsel acted like she had a pair of face cards when she had nothing. When the Judge read the recommendation, adopted it as the temporary order of the court, and also added some additional provisions I requested—the opposing counsel seemed incensed.
I was reminded that Local Rules matter. LA County family law attorneys need to track specific mediators to have their Preemptory challenges ready. These LA lawyers are ready to put up a stone-wall and bluff because unless the mediator’s recommendation offers everything they are looking for—they have no skin in the game. Family law cases in Ventura County are a totally different animal. Sometimes clients wonder if hiring a local attorney matters. It’s not just about your lawyer’s office being a convenient stop after work. You need a local attorney that knows when bluffing works and when it doesn’t.
Los Angeles County Rule of Court, Rule 5.19
“No Family Court Services staffperson, party, counsel, or participant may be compelled to testify concerning any information acquired–including, but not limited to, communications or observations made in connection with the provision of Conciliation Court services.”
Ventura County Rule of Court, Rule 9.30
In accordance with California Family Code Section 3183, where mediation has not resulted in a full agreement between the parties on all custody and visitation issues, the mediator may recommend the following, with or without the stipulation of the parties:
a. A parenting plan, addressing issues of legal and physical custody, visitation or time share, and other orders related to the best interests of the child(ren);
b. More mediation time is needed (and, if agreed by the parties or ordered by the Court, the mediator will make specified collateral contacts);
c. Appointment of an attorney to represent the children under Family Code section
d. A psychological evaluation of the parties under Evidence Code section 730;
e. An investigation or evaluation pursuant to Family Code section 3111; and,
f. Restraining orders be issued to protect the well-being of the child(ren) involved in the controversy under Family Law Code section 3183(c).