Introduction: The California Bubble and the Global Reality
For nearly five decades, I have watched California serve as the primary incubator for alternative dispute resolution (ADR). Whether it was the early adoption of mandatory mediation in custody disputes or the growth of a sophisticated private industry for high-net-worth families, we have long considered ourselves the gold standard. But the reality on the ground is changing. The families mediating today are more multicultural, more technically savvy, and often deal with assets or lives that span multiple jurisdictions.
While our “facilitative” model, acting as a neutral conduit for communication, is a powerful tool, it often hits a wall when we encounter deep-seated cultural expectations, high-conflict personalities, or the complex emotional blockages that happen when children are involved. To stay ahead, we must look beyond our own borders. Jurisdictions like Australia, Canada, Singapore, and the Nordic countries have pioneered tactics that address the specific fractures of modern divorce. By broadening our lens, we find that the hurdles we face in Los Gatos or San Diego are being solved with elegant, clinical solutions in Singapore, Sydney, London, and Oslo.
1.) The “Child-Inclusive” Model: Lessons from Australia
In California, we usually hear the child’s voice through the blunt instruments of Minor’s Counsel or a § 3111 Custody Evaluation. These are formal, legalistic, and, frankly, often adversarial. Australia has spent decades perfecting Child Inclusive Mediation (CIM), designed to keep children out of the litigation “blast zone” while keeping their needs front and center.
CIM uses a specialized child consultant, a psychologist or clinical social worker, who meets the children in a therapeutic setting. They aren’t asking the child to “pick a side.” Instead, they seek to understand the child’s experience of the conflict. The consultant then enters the mediation room as a “neutral messenger” of the child’s reality.
The Power of the Feedback Loop: When a neutral professional tells a father, “Your daughter mentioned she feels like a spy when you ask about your ex-wife’s household,” it carries a weight that the other parent’s accusations never could. It shifts the dynamic from “Parent A vs. Parent B” to “Parents vs. The Problem.” We can adopt this in private practice by bringing in a child specialist for a targeted feedback session, bypassing the trauma and expense of a full-blown evaluation.
2.) Front-Loading Success: Mandatory Information Sessions
One of the greatest hurdles I see is the “information gap.” Parties arrive with wildly different understandings of the law and the financial reality of running two households. In Ontario and the U.K., parties are often required to attend information programs before the case proceeds. This ensures mediation is an exercise in negotiation, not basic education.
The British MIAM (Mediation Information and Assessment Meeting) ensures parties understand their ADR options and the consequences of litigation before a single motion is filed. While I cannot mandate state-wide policy, I can and do suggest “Pre-Mediation Homework.”
Implementation in California: Instead of spending the first expensive hour explaining community property vs. separate property, we can provide curated video modules or specific texts on high-conflict co-parenting. By front-loading this information, we reserve “on the clock” time for high-level negotiation. It reduces legal fee “sticker shock” and ensures both parties are emotionally prepared for the rigors of settlement.
3.) The Cultural Intelligence of Caucusing: The Singapore Model
California’s diversity means our Western techniques often clash with Eastern cultural norms. Singapore has developed sophisticated methods for handling “face” (social standing). In many cultures, the adversarial nature of making a demand or granting a concession is seen as a direct threat to dignity.
In my practice, I use caucusing for reality testing. However, the Singaporean model uses the caucus to manage “face.” Making a concession in a joint session can feel like a humiliating defeat. But in a private caucus, the mediator can “package” that concession, so it preserves the party’s dignity when presented to the other side.
A Lesson from the Bench and the Bar: I recall a particularly grueling case involving a family from Singapore. The father was intent on moving the parties’ two minor children back to Singapore, while my client, the mother, fought to keep them here in California. It was an exceptionally contentious battle; the father had engaged in surreptitious spying and verbal abuse, all while projecting his behavior by claiming he was the one being abused. Backed financially and emotionally by his parents, he took the case through a full trial and a subsequent appeal. He lost at every level, but the cost, both financial and emotional, was staggering.
Reflecting on that case today, I wonder if a different approach might have changed the trajectory. If we had constructed a “face-saving” mechanism, perhaps a way for him to frame the decision to stay in California as a noble sacrifice for the children’s education (although one of the father’s persistent claims was that the Singaporean schools were far superior to California’s schools) rather than a legal defeat, we might have bypassed years of litigation. The mediator acts as a “face-buffer,” reframing concessions not as “losses,” but as wise and generous leadership for the sake of the family.
Tactical Application: We should be more sensitive to the “audience” in the room. In communities where social standing is paramount, I might spend most of the time in caucus. Not because the parties can’t talk, but because the caucus is the only place where a party can admit a weakness without losing status. I act as a “face-buffer,” reframing concessions as wise, generous leadership for the sake of the family.
4.) Reflexive and Circular Questioning: Insights from the Nordics
Norway and Sweden have integrated “systemic family therapy” into mediation. A standout tactic is circular questioning. Usually, we ask, “What do you want?” or “What is your bottom line?” These are linear questions that encourage people to dig their heels in.
Circular questions ask a party to step outside themselves:
- “If I asked your daughter’s teacher how this conflict is affecting her grades, what would they say?”
- “If I were to ask your brother why he thinks you’re so concerned about this schedule, what would his answer be?”
These questions bypass ego-defenses. They move the conversation from rights-based (“I have a right to this”) to interest-based (“It is in our interest to do this”).
5.) Ethics and the California Mediator
It is vital that these international tactics still comply with our strict confidentiality rules (Evidence Code § 1115-1129). We must ensure that any third-party consultants, like the child specialist, sign confidentiality agreements that bring them under the mediation “umbrella.” Without this, the “voice of the child” could be weaponized in a later trial. Furthermore, transparency remains the bedrock of our practice; we must explain these shifts in process to counsel, so they remain partners in the resolution.
Conclusion: Toward a Globalized Practice
The challenges facing California families in the 21st century, such as digital assets, international travel, and deep cultural nuances, require more than a one-size-fits-all approach. Whether it’s the Australian child consultant or the Singaporean “face-saving” maneuver, these tools offer pathways through the thicket of high-conflict divorce.
Integrating these ideas doesn’t require a change in our Evidence Code. It simply requires curiosity. As a state with many immigrants and innovators, it is only fitting that our approach to family peace reflects the best ideas from every corner of the globe. By staying open to these strategies, we ensure that “the California way” is always evolving, compassionate, and effective.
Endnotes
¹ See Fam. Code, §§ 3111, 3150.
² See Australian Family Law Act 1975, §§ 60CA, 60CC (prioritizing the “best interests of the child” as the primary consideration in parenting orders).
³ McIntosh, J. E., Wells, Y. D., Smyth, B. M., & Long, C. M. (2008). Child‐focused and child‐inclusive divorce mediation: Comparative outcomes from a prospective study of postseparation adjustment. Family Court Review, 46(1), 105-124.
⁴ Ontario Ministry of the Attorney General, Mandatory Information Programs (MIP) https://www.ontario.ca/page/mandatory-information-programs-mip [as of April 30, 2026].
⁵ United Kingdom Ministry of Justice, Children and Families Act 2014, § 10.
⁶ See Fam. Code, § 3180 (discussing the mediator’s duty in California custody proceedings to protect the best interests of the child).
⁷ Joel Lee, Culture and its Importance in Mediation, 16 Pepp. Disp. Resol. L.J. 317 (2016)..
⁸ Anna Nylund, Nordic Family Mediation: Towards a System of Differentiated Services? in Children in Custody Disputes: Matching Legal Proceedings to Problems 41 (Anna Kaldal, Agnes Hellner & Titti Mattsson eds., 2023).
⁹ See Fam. Code, § 3180, subd. (a) (noting the purpose of mediation is to reduce acrimony between parties).
¹⁰ See Evid. Code, §§ 1115–1129.
¹¹ Evid. Code, § 1119, subd. (c).
¹² See Fair v. Bakhtiari (2006) 40 Cal.4th 189, 194 (confirming the broad scope of mediation confidentiality).