by Jamie Polito Johnston
Mediation in Divorce: Until Dispute Resolution Do Us Part
In King County, parties in a marital dissolution action are required to participate in some form of Alternative Dispute Resolution (ADR) prior to their case going trial. ADR includes a variety of procedures for settling disputes by means other than litigating in court and having a judge or court commissioner issue a ruling in the case. One form of ADR is mediation. Mediation provides a forum for divorcing spouses to resolve their disputes (including disputes involving property and debt division, business valuations, parenting and child support) with the assistance of a neutral third party. The mediator is often highly-trained and typically has years of experience in family law. Some mediators are former judges or commissioners who utilize their experience from the bench to advise the parties as to how the court might rule in their case. The mediator serves to identify the disputed issues, facilitate and reduce obstacles to communication, explore possible settlement scenarios and help keep negotiations flowing in order to reach a mutually agreeable resolution for both parties. The mediator will not take sides, will not give legal advice, and does not make a decision; the decision rests solely in the hands of the divorcing couple.
Why mediation makes sense:
There are numerous advantages to resolving divorce through mediation. Mediation permits the parties to retain control of the process and their agreement rather than leave the decision-making up to a judge who has little knowledge of the parties, their family and the nature of their estate. Mediation is less adversarial and time-consuming and is far less costly than battles waged in court.
Mediation is effective especially when children are involved. The worse aspect of a divorce for children is the conflict between the parents. The divorce is traumatic enough for them; it is in the children’s best interests when their parents work together to make adult decisions, and not put the children in the middle. Mediation allows parties to make decisions regarding the custody and visitation of their children in a cooperative setting.
Unlike litigation which plays out in a public courtroom, mediation is entirely confidential and protects the privacy of both parties. The mediator cannot be called as a witness in any court proceeding. All settlement discussions and offers exchanged during the course of mediation cannot be revealed or used as evidence in court if mediation is unsuccessful and the case later proceeds to litigation.
When divorcing spouses reach a mutual agreement, there is a stronger likelihood of future cooperation and both parties can feel comfortable with the outcome. The parties are also more likely comply with their own agreements achieved through mediation than with adjudicated decisions imposed upon them by a judge. An additional advantage is that when the parties reach agreement in mediation, the dispute is over—they face no appeals, delays, continuing expenses, or unknown risks. The parties can begin to move forward with their lives and feel satisfied the outcome of their divorce.
Why it makes sense to have a Seattle divorce attorney represent you in mediation:
Mediation does not remove the need for legal counsel. It is advisable to have a divorce attorney present at mediation. The mediator has an ethical duty to remain impartial throughout the mediation process and cannot provide legal advice to or represent either or both parties. Therefore, it is important that parties are represented by counsel at mediation to ensure that their legal rights are protected. The attorney will identify legal issues, help formulate settlement proposals and describe possible outcomes if the case were to proceed to trial. Additionally, a divorce attorney can explain the legal and financial implications of the parties’ proposals and help devise alternative solutions advantageous to the client’s interests. Most importantly, the attorney can help draft and review the final mediation agreement (CR2A agreement) to ensure that all relevant legal issues have been addressed, that the agreement reflects the client’s understanding and that there will be no unintended consequences (e.g., tax liabilities) arising from the terms of the agreement.