What Parents Should Know About Private Judging — Before It’s Too Late to Ask
By Michael Phillips | Riptide Investigations | Father & Co.
“I literally thought I was attending a status conference. I took the day off from law school and attended via Zoom at home by myself with no support people. The private judge appeared on screen and said, ‘I’m so glad you decided to do mediation today.’ I went into shock.” — Brenna Gano, San Mateo County, February 15, 2022
Brenna Gano is not an unsophisticated person. She had a year of law school under her belt. She understood the basics of family court procedure. She knew the difference between a hearing and a settlement conference.
Or she thought she did.
What she didn’t know — what her own attorney had not told her — was that the proceeding she logged into that February morning was a privately compensated Mandatory Settlement Conference before a retired JAMS judge, with the full authority of the court to bind her to any agreement she signed. She didn’t know that the woman on her screen could sign enforceable orders. She didn’t know that agreeing to terms that day could close discovery, waive her right to trial, and shape the next several years of her life and her relationship with her son.
She found out the hard way.
Her case is not unique. It is, increasingly, typical. Across California — and in family courts nationally — parents are finding themselves inside private resolution processes they don’t fully understand, at moments when they are least equipped to ask the right questions. The consequences can be irreversible.
This piece explains what private judging is, how it differs from other resolution processes, and what parents should know before they agree to anything. Consider it the guide Brenna Gano didn’t have.
What Is Private Judging?
Private judging allows parties to hire a privately compensated judge — usually a retired judge — who is temporarily authorized to act as a judge pro tempore. Once appointed, that judge can oversee settlement conferences, hearings, or other proceedings, depending on the scope agreed to by the parties.
The practice is permitted under California law, primarily under Code of Civil Procedure § 638, and overseen by the courts and the California Judicial Council. Courts often encourage private resolution to reduce backlogs and move cases forward more quickly.
In family court, private judging most commonly appears during Mandatory Settlement Conferences (MSCs) or mediation-style proceedings, where the goal is to resolve a case without trial. But this is precisely where many parents become confused — because what looks like mediation may carry very different legal consequences.
ADR, Mediation, and Private Judging: What’s the Difference?
Courts often refer to private judging as a form of Alternative Dispute Resolution (ADR) — a broad umbrella term meaning resolution without a traditional courtroom trial. But not all ADR processes carry the same authority or the same consequences. The distinctions matter enormously.
Mediation is what most parents think they’re getting. A neutral mediator facilitates discussion and helps the parties negotiate, but cannot make decisions, issue orders, or force a settlement. If mediation fails, the case returns to court. The critical point: parents can walk away from mediation.
A Mandatory Settlement Conference (MSC) is a court-ordered proceeding intended to resolve a case before trial. MSCs often feel informal — conversational, low-pressure, nothing like a courtroom hearing. But when an MSC is overseen by a judge, commissioner, or judge pro tempore, agreements reached may become binding and enforceable immediately. This is a distinction that is not always obvious in real time.
Private judging / judge pro tempore sits at the far end of the spectrum. A judge pro tempore is authorized to act with the full authority of the court — overseeing an MSC, approving settlement agreements, and signing enforceable orders. Once parties agree to a judge pro tempore, they generally cannot simply walk away. Decisions may be final and extremely difficult to undo.
A status conference is a procedural check-in about scheduling, compliance, or readiness for trial. It is not a settlement conference. The problem arises when a proceeding that is described as a status conference turns out to be something else entirely once the parties are in the room — or on the Zoom call.
A useful rule of thumb: if the person running the session can sign an order, it is not mediation.
How Parents End Up in Private Resolution
Most parents do not actively seek private judging. It is typically introduced after months — or years — of litigation, when courts are encouraging settlement and both parties are exhausted and financially depleted.
At that stage, proceedings can shift quickly. A hearing that feels administrative may become a privately supervised settlement conference once attorneys stipulate to a judge pro tempore. Attorneys handle the paperwork. Parents feel pressure to move forward. The moment passes before anyone has fully explained what just happened.
For parents who are self-represented, neurodivergent, disabled, or operating under significant emotional stress, the distinction between a public court hearing and a private, binding proceeding is not always apparent in real time — particularly when attorneys misrepresent the nature of the proceeding, whether negligently or deliberately.
Private judging also carries a financial dimension that directly affects power dynamics. Unlike public court, where delay is frustrating but free, private adjudication charges by the hour — often hundreds of dollars per hour, split between the parties. For the lower-resourced party, the cost of continuing to fight is immediate and tangible. For the wealthier party, sustained engagement is simply a line item. That asymmetry does not disappear inside a JAMS conference room. It intensifies.
What Happens to the Record
One of the most consequential differences between public court and private judging is what gets recorded — and what doesn’t.
In open court, hearings are typically recorded by an official court reporter or electronic system. In private settlement conferences, a court reporter is often not present unless one is specifically requested and paid for. Without a reporter:
- There is no transcript of what was said or how decisions were reached.
- Later disputes about what occurred rely on memory, notes, and written declarations.
- Review by another judge becomes significantly more difficult.
This is not inherently improper — but it matters enormously when agreements are reached under pressure, confusion, or coercion. Without a record, there is nothing to challenge. Without a transcript, there is no proof of what was promised, threatened, or misrepresented in the room.
In Brenna Gano’s case, there was no court reporter present at the February 15, 2022 proceeding. There is no transcript. What happened that day exists only in declarations, contemporaneous accounts, and the document she signed.
Settlement Finality and What Parents Give Up
Agreements reached through private judging are often memorialized in Memoranda of Agreement (MOAs) that become immediately enforceable once entered as judgment. In practical terms, a parent who settles typically waives:
- the right to trial,
- the right to further discovery,
- and, in many cases, meaningful appellate review.
Courts prioritize finality in family law. Once a settlement is entered, undoing it is extremely difficult — even if a parent later believes the process was rushed, imbalanced, or built on incomplete financial information. Motions to set aside face high legal bars. New counsel is reluctant to challenge finalized agreements. Appellate courts do not retry cases; they review errors, and when there are no findings on record, there is nothing to review.
Finality, once imposed, is close to absolute. For families, this means that a single proceeding — one that may have lasted a few hours, without a court reporter, with an exhausted parent attending alone via Zoom — can determine custody arrangements, support obligations, and financial outcomes for years.
The ADA Problem
Parents with documented disabilities have an additional layer of risk in private judging. Under Title II of the Americans with Disabilities Act, courts are required to provide reasonable accommodations — modified procedures, additional time, support persons, accessible formats — to ensure equal access to justice.
Private adjudication sits in a legal gray zone. The ADA obligations that apply to public courts are less consistently enforced in privately compensated proceedings. For parents with ADHD, PTSD, or other conditions affecting processing speed, comprehension under pressure, or emotional regulation, a high-stakes settlement conference conducted without accommodations is not a level playing field.
In Brenna Gano’s case, she attended the February 15, 2022, MSC alone, via Zoom, without any ADA accommodations — despite having documented diagnoses and active accommodations in her law school program at the time. She has since argued, in a pending Amended Request for Order, that the denial of accommodations contributed directly to the circumstances under which she signed the contested agreement.
Questions to Ask Before Agreeing to Anything
If you are in a family court case and your attorney mentions a settlement conference, a judge pro tempore, JAMS, ADR, or private judging — or if you are simply approaching a scheduled hearing and are not certain what format it will take — these are the questions to ask before you walk into the room:
- Is this proceeding public or private?
- Who is presiding, and what authority do they have?
- Is this person authorized to sign enforceable orders?
- Will there be a court reporter or recording?
- If I need ADA accommodations, how do I request them for this proceeding?
- What rights am I waiving if I agree to terms today?
- Is any agreement I sign immediately enforceable?
- Do I have time to review terms with independent counsel before signing?
- Has full financial discovery been completed?
These questions are not adversarial. They are basic. Any attorney who discourages you from asking them is not serving your interests.
A Note on Scope
This article focuses on process, not on the merits of any individual case. Private judging can be appropriate in some circumstances — particularly when both parties have equal resources, equal access to counsel, and a complete financial record. The concerns raised here are structural, not categorical.
What parents deserve, before they consent to any private resolution process, is clear information about what they are agreeing to. That information is too often withheld, obscured, or simply never provided.
Brenna Gano’s case is currently pending in San Mateo County Superior Court. Her Amended Request for Order to Set Aside the Memorandum of Agreement — on grounds of fraud, duress, coercion, and ADA violations — was before the court as of early 2026. A hearing previously scheduled for January was continued to May 20, 2026, after her attempt to disqualify the presiding judge was denied.
She is representing herself.
—
This is the second article in the Riptide series on the San Mateo County family court. Read the first: “The Psychiatric Weapon”.
Keep Father & Co. Free
Father & Co. exists to support parents navigating separation, custody, and systems that are often confusing, isolating, or overwhelming. This work is grounded in lived experience, careful research, and respect for the real stakes families face.
If this article helped you feel less alone, better informed, or more grounded, reader support helps keep these resources free and available to others who need them.
Need help reviewing or organizing court or formal documents?
Father & Co. offers non-legal document review and organization for people representing themselves. This includes clarity, structure, neutral tone, and timeline organization — not legal advice or representation.
Have a story, experience, or resource to share?
Submissions are reviewed with care and discretion. We respect privacy and handle sensitive information responsibly.
Discover more from Fatherand.Co
Subscribe to get the latest posts sent to your email.
