If you have a divorce or parentage case in Snohomish County, you will be required to mediate the dispute unless you fit into the narrow category of people who can opt out (which largely focuses on domestic violence victims). Mediation is an incredibly useful and significant part of any family law case, and it is an area where clients tend to know very little, given that it is rarely discussed in the media or well-publicized, since it lacks the spectacle you might see in a deposition or a trial.
In this post, I will do my best to describe what mediation is for family law cases, and talk about the things that need to be in place before it can occur so that you and your lawyer can mediate well and (hopefully) get a good result.
What Is It? In its most simple form, it is a dialogue between the two parties to see if they can figure out some compromise on the issues in the case. If this is done directly through the parties or through their lawyers, it is called “informal settlement negotiation.” Mediation is different because it involves the use of a mediator. A mediator is typically a very experienced family law attorney whose assessments of cases is respected by both sides. He or she will serve as a “go between” between the parties as they sit in different rooms (or virtual rooms). The mediator will offer an assessment of the case, highlight the risks and rewards, and give a realistic “range” of possible outcomes if the case is tried. Good mediators are also skilled at coming up with creative solutions to problems, to help dislodge parties "stuck" on certain positions. Good mediators also have a gift for spotting parties' psychological "hang ups" and finding ways to gracefully navigate them.
With the mediator’s help, parties can come to agreement on all points in their case and settle it.
How Does It Work? In Washington, family law mediation is typically “shuttle mediation,” which means that the mediator will go back and forth between each party and their lawyer in one room, and the other party and their lawyer in the other room. The two parties and their lawyers never meet face to face. Given the tensions between the parties at this point in the case, we have found that this separation is a valuable part of making the process work.
After some initial discussion, the parties will typically start passing back and forth a document called a CR2A agreement (named after the rule creating it). This is basically a contract to settle the case. Each side will make changes to the agreement as it is handed back and forth. Typically, the two parties’ have positions that move closer together with the exchanges until the parties either find common ground or reach their “limit” where they are not willing to give more ground.
It is common to have these discussions in chunks. For example, you might talk about an agreed parenting plan in the morning with the idea that will be easier to get sorted out, and tackle the tougher topics of property division, child support, or alimony in the afternoon. (The purpose of doing it this way as to start out with some agreements and build up “momentum” for the negotiation.)
One thing you should be prepared for is that your attorney will literally make you read every word of the CR2A agreement. Even if you trust your attorney implicitly and think he or she is the best attorney to ever practice law, you should still review every word. These agreements have enormous consequences and virtually impossible to set aside, so your lawyer should take the time to make sure you understand every word of the agreement before you put pen to paper and agree.
At the end of the mediation, whether you agreed to something or not, you will have to pay the mediator for his or her services. You should be prepared to make that payment the day of mediation, or have spoken with your lawyer beforehand to make some sort of arrangement. The other party may offer to pay your mediation fees as a settlement provision, but you cannot assume this will occur.
After the agreement is done, the parties typically take between two and four weeks to generate a set of agreed final orders based on the CR2A contract. Those orders are submitted to the Court, which signs them and concludes the case, unless the Court determines there is something incorrect or improper about the agreement. (This is fairly rare – especially with both parties represented by lawyers.)
If the parties do not agree, they still get a certificate from the mediator that they file with the Court to prove they met the mediation requirement before going to trial.
Aftermath: There is an age old adage that says “the mark of a good compromise is that no one walked way happy.” After spending many years as a lawyer, I can tell you that this is the gospel truth. A good mediated agreement represents neither your best, nor your worst day in court. It is somewhere in the middle. This is true for both parties. It is an option picked as an alternative to the potential chaos that comes from a trial. (Most mediators will not hesitate to point out to you that we have more than 20 Superior Court Judges in Snohomish County, blessed few have family law experience as an actual practitioner, and because of the leeway they are granted in making rulings, they could come up with wildly different rulings on the same facts.)
It is extraordinarily common for people to get “buyer’s remorse” afterwards, or to speak to a friend or family member that says, “When so-and-so got divorced, they got X amount of money, custody, etc.” The way to equip people for that (or avoid it entirely) is proper preparation. This should give the client a clear understanding of what they chose, the risk they managed, and the difference between their case and what happened to someone’s uncle in a different part of the country 20 years ago.
Preparation: The acts of picking a mediator and booking time are very easy. Proper mediation requires an enormous amount in addition to these steps.
First and foremost, all relevant evidence has to be assembled. You cannot proceed to mediation unless you have all the evidence you might need to litigate custody, child support, or property division. In some cases, this is not a lot of information, but in others, the amount can be substantial. I’ll provide a hypothetical to illustrate:
Hypothetical Client: I represent a mother of two who is just getting back into the working world. Her husband owns and runs a business and makes a good income that fluctuates. The couple owns a house, and the husband has a pension from a former union job. The husband also has struggled with alcoholism in the past.
In this case, I would need to do enough digging to figure out what wife could really expect to make in the job market, what the husband really makes every year, how much his business is worth, how much the house is worth (and if one party can "buy the other" out of it), the value of the pension, and enough information about the father's alcoholism that I could make a parenting plan that can keep the kids safe in his care.
If I do not have all these items, I cannot make prediction models for what a trial court might do with the case. Without those models, I do not have a range of likely outcomes. Without that range, I am unequipped to mediate because I do not know what a good deal looks like for my client.
It really is that simple. (If you have a lawyer that is eager to mediate without bothering to understand all the relevant evidence, run. Very little that is good can come from such an arrangement.)
You might be eager to get done with the case and mediate it before knowing the facts because of how uncomfortable the divorce process is. Believe me, I understand the feeling, but your lawyer will likely push back on that fairly hard. The reason is because if you discover down the line that there were hugely valuable assets your lawyer did not know about or account for, he might be looking at a malpractice claim in the future. In a sense, mediation is not that much different than performing surgery. Your “doctor” needs to have the best idea of what is going on with his "patient" (the divorce) so he can do the best job treating you.
A good lawyer will assemble all the data before mediation and give you predictions of your estimated best and worst case scenarios to provide you with a range. He or she will ask you about your priorities and the areas where you are willing to give up some things. Your lawyer may also ask you about the opposing party and how they are likely to react to the process, to learn the best psychological approach for the negotiation. In many instances, a lawyer might sketch some “negotiation pathways” to give you an idea of the likely strategies that could be used in the mediation.
Getting prepared for a mediation is not unlike drinking from a firehose. You will be asked to assimilate a lot of information, and make some very hard decisions about what your life is going to look like after the divorce. Good lawyers will expose you to that torrent of information well in advance of mediation, to make sure that you understand it and have thought your way through this.
I have seen several mediations fail simply because one of the parties was hearing way too many things for the first time.
In my own practice, I try to write mediation statements in advance of the date that outline all the issues, evidence, and important considerations. I am writing this as much for the other party as the mediator, since my letter ensures the other party will at least start giving these things some thought from reading my letter to the mediator.
Your understanding of the case in mediation will be absolutely crucial. As offers to back and forth, you will be called on to rapidly assess positions (with your lawyer’s help) and consider new ones. If you and your lawyer have done your “homework” well beforehand, this process is not typically stressful because you are not dealing with much in the way of new information.
Practical Considerations – Before / During / After: Make sure and bring a book or a computer to mediation. There are certainly times when you, your lawyer, and the mediator will be talking furiously, but there is also a lot of time when the mediator is in the other room “earning his paycheck,” as I like to say. As a lawyer, I bring work for other cases so I can save my clients some billable time, but you will definitely need something to occupy your stressed-out mind. Make sure and bring snacks, too. Most mediators provide some food, but some do not. As silly as it sounds, people make bad decisions on empty stomachs, so make sure you have enough snacks and drinks.
After the mediation, budget yourself at least that evening and the following day to recover. I highly recommend planning on ordering comfort food that evening and finding a mindless movie to watch. Try to take the next day off work, if you can. Warn the kids that Mom and Dad are going to be wiped out and might need some extra care.
The mediation process is enormously physically and psychologically taxing. You need to make sure and give yourself time to recover. In a very real way, you have just concluded a chapter in your life (if you settled) and you will need time for your mind and body to get back to equilibrium.
Also, if you can avoid any discussions with the other party for a few days, that is ideal. It can frequently be valuable to let everyone settle in and wrap their minds around the “new normal” before settling in. Like you, they will be talking to friends and family and adjusting. Let them have time for that to happen.
Conclusion: I very strongly believe in mediation as a process. In many cases, parties know much better than any person wearing a black robe what is best for them and their children. Trials are sometimes necessary, but they cost a lot of money and skyrocket tensions between the parties. Heated exchanges in courtrooms and color parties’ relationships for the rest of their lives. Mediation provides an opportunity for the parties to chart their own fates, and if everyone does their “homework,” do so in a way that is far superior to what could otherwise be achieved.
Hopefully this information was helpful to you. As always, I wish you the best of luck.
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