–By Sam Darling, Genesis Divorce Practice Group
This article provides an overview of divorce and family law mediation in Washington State. Aside from the basics of the subject, this article explains WHEN to mediate. Statistics suggest timing is the most crucial factor in reaching settlement.
Though this article primarily discusses divorce mediation, the same rules and principles also apply to most other types of family law mediation, such as parentage actions and parenting plan modifications. The exceptions are cases exclusively involving child support or spousal maintenance (alimony), which parties typically do not mediate.
What Is Divorce Mediation? Divorce mediation occurs when a ‘third-party neutral’ attempts to broker a settlement agreement between the divorcing parties. Put more simply, mediation is when someone unbiased tries to help the parties reach agreement. Usually the third-party neutral meets with the parties in-person at an agreed-upon time for the agreed-upon purpose of mediating the terms of the divorce.
Not an Arbitrator. Many non-lawyers confuse mediators with arbitrators. A mediator helps the parties negotiate a settlement but cannot make any decisions for them. An arbitrator, on the other hand, decides the outcome of a dispute.
Who Can Act as Mediator? In most cases, anyone unbiased can act as a divorce mediator. There is no Washington state requirement that the mediator have a mediation certificate or receive payment. For instance, some parties prefer an unpaid religious leader, such as a lay pastor or rabbi, rather than a professional mediator.
Who Are the Best Mediators? The best mediators tend to be trained professionals with strong backgrounds in divorce law. More specifically, the most effective mediators are usually former lawyers or retired Superior Court judges. This is our firm’s impartial opinion – we have no financial connection to any professional mediators.
For more impartial advice on mediator selection, see our firm’s article on the top mediators in Snohomish County. If you are not in Snohomish County, you might try contacting a law office near you for names of good local mediators.
Is Mediation Required in Washington? State law does not require divorcing parties to mediate; it only encourages it. However, many counties have enacted local rules mandating mediation in most types of family law cases, such as divorces. For example, Snohomish County and King County require alternative dispute resolution (ADR) in divorces, and mediation is the most common type of ADR. You can find every county’s local rules by clicking the link in this sentence.
Waiving the Mediation Requirement. In counties that require ADR/mediation, the requirement is waivable. To obtain a waiver, a party must request it by motion and receive a court order specifically granting the waiver.
The most common basis for waiving the ADR/mediation requirement is domestic violence. In cases involving a history of domestic violence, the victim-abuser relation can interfere with arm’s length negotiations even when the parties are not allowed to directly interact with each other. As a law review article from Gonzaga explains:
[B]ecause mediation presupposed parties with equal negotiating skills, mediators often refuse to handle domestic violence cases in which one party is obviously less independent and more controlled by the abuser . . . .
. . . .
A victim of domestic violence may consent to anything in the mediation setting when confronted by her abuser.
Shuttle Approach. Most professional mediators conduct negotiations using the “shuttle approach”. This means each party is in a separate room (with his or her attorney if they have one), and the mediator shuttles settlement offers back and forth between them.
Mediators prefer the shuttle approach for several reasons, such as privacy and decreased conflict. But the approach’s primary benefit is that is allows the mediator to convey his or her opinion to one side without the other side hearing. That is, the mediator will usually tell the husband the weaknesses of his case, then separately tell the wife the weaknesses of her case. If done properly, each party will feel his or her case is weak. This tends to move the parties off their positions, resulting in settlement.
Length of Mediation. Generally speaking, longer mediations settle at a higher rate than short ones. If settlement is your goal, you should strongly consider scheduling at least an eight hour (full day mediation) rather than a partial day mediation. Notably, many mediators have begun scheduling 10 am “late start” mediations rather than 9 am starting times. The loss of this extra hour can impact the likelihood of settlement. Our firm typically request a full eight-hour mediation session, and mediators usually accommodate us, even if they prefer late starts.
When to Mediate (the “Golden Window”). The optimal time period appears to be four to eight weeks prior to trial, which our firm calls the “golden window” or “magic window”. Mediation scheduled outside this time window results in settlement approximately 50% of the time, whereas mediation within it appears to result in a settlement rate over 90%. That 40 percentage point increase makes timing the most important determinant of settlement. Even the most difficult cases settle at a high rate within this optimal time period.
The reasons for this are debatable but probably involve the parties’ fear of trial. The golden window is when parties most fear trial, and they settle to avoid it. By contrast, prior to the golden window, trial seems less frightening because of distance. After the golden window, trial seems less daunting because the parties will have already paid their attorneys’ trial advance fee deposits (usually $10,000 due about a month before trial) and have begun trial preparations.
Parties usually have one chance at mediation in each case. Our firm’s advice–make it worthwhile by mediating at the right time.
Who Pays? Absent a court order or agreement on the subject, each party usually pays 50% of the mediator’s fees and all his or her own attorney’s fees.
Are Attorneys Necessary? No, parties do not need attorneys at mediation, though their presence is customary. Mediation consists of offers between the parties. Without counsel, it is difficulty for a party to formulate offers and evaluate counteroffers.
What if the Opposing Party Refuses to Mediate? If the opposing party refuses to mediate despite a mediation requirement, seek the court’s help. Often the court will issue an order setting mediation and compelling the opposing party to attend. If the opposing party nonetheless disobeys the order, the court can sanction him or her.
For more free legal articles and videos, visit the resources section of our law firm’s website. Or contact us at 866-631-0028 to speak with one of our knowledgeable family law attorneys in Washington State.