Almost all marriage dissolution proceedings in Washington are resolved without the necessity of a trial. In Washington state, the vast majority of these cases, over 90%, settle informally or through some version of alternative dispute resolution, frequently mediation, but sometimes arbitration.
Occasionally, informal settlement talks begin shortly after the petitioner files legal paperwork. More often, however, the parties spend the next several weeks or months gathering necessary background information, securing valuations, and researching any out-of-the-ordinary legal issues. Once completed, the parties engage a mediator to assist in resolving the issues without the expense of a trial.
The parties and their attorneys determine the choice of mediator. The court would not become involved in the selection absent unusual circumstances, such as the parties’ inability to agree on a mediator. Additionally, in most circumstances, a dissolution case will not be allowed to proceed to trial unless the parties have attempted some form of alternative dispute resolution, such as mediation.
While both mediation and arbitration are considered forms of alternative dispute resolution, they are not identical in format. No matter the procedure, a Seattle family law attorney typically follows a similar approach: not to rush into anything. An experienced family law attorney, instead, should evaluate your case from a legal and personal perspective.
Because there are many resolution options available, there is no one-size-fits-all. The extra planning takes extra time at the beginning, but the additional investment nearly always pays off at the end. Here’s what you need to know about these two alternative forms of dispute resolution.
Arbitration Basics
An arbitration is similar to a hearing, except the parties meet in front of an arbitrator instead of a judge or court commissioner. The parties must pay the arbitrator (unlike going to court, where the judge is funded via taxes, not paid privately by the parties before him/her). But it can be worth the added expense, given that the result can often be better and more detailed.
Arbitration proceedings are private, while trials in court are open to the public. Formal rules of evidence and civil procedure govern the litigation process in court. Arbitrators generally observe those same rules and procedures but may adopt additional ones to facilitate the arbitration or may be more liberal in allowing evidence to be considered.
As mentioned earlier, privacy can be an advantage in high-asset divorce cases. Court document filings will still be discoverable by anyone who wishes to look up your case, but such pleadings usually do not include specific details unless they are for a scheduled hearing or trial. If you and the other party opt for mediation or arbitration in lieu of a court hearing or trial, no one, outside the participants and their Seattle family law attorneys, knows what happens in an arbitration proceeding. On a related note, arbitration hearings usually take place in office conference rooms and other informal settings. The environment often helps reduce the participants’ stress levels.
Another advantage of arbitration in lieu of a formal trial is that the attorneys will more likely than not opt for someone with substantial experience in family law and the issues in your case. Infrequently, but it does happen, dissolution cases can end up being assigned to trial judges who may not have come from a family law background.
The judge may have superb knowledge of, for example, criminal law or construction litigation, but not a great deal of experience in family law. In those cases, the parties can be at a disadvantage. Whereas with an arbitrator hand-picked and agreed to by the parties’ attorneys, the arbitrator can be selected with confidence that they have the experience and know the applicable law in depth.
Yet another significant advantage to choosing arbitration in lieu of trial is the level of detail. The court system carries a heavy load of cases needing resolution. Priority is given to criminal cases, due to defendants’ constitutional right to a speedy trial. The second priority is family law cases, primarily because many involve children.
Beyond that are all manner of disputes the court is charged with resolving. In practical terms, this means the court cannot allow a trial to last more than what is absolutely necessary. They have to keep things moving to avoid backlogs. In a trial, you may wish you had more time to spell out more details or intricate issues, but the amount of time the judge is able to give you may not accommodate that. Moreover, the court’s decision may not be as detailed as you would prefer, in effect leaving issues unaddressed that later become post-divorce disputes.
In an arbitration, however, there is no such limitation. Since the arbitrator is privately hired, they can schedule an arbitration for as long as needed. Similarly, arbitrator decisions can be very detailed if the parties want that. At the end of an arbitration, the arbitrator prepares their written decision and sends it to the parties. Like a judge, the arbitrator’s decisions are binding.
The attorneys then take the arbitrator’s rulings and decisions and enter them into final orders that will be accepted by the court while still maintaining the confidentiality of sensitive facts. The dissolution action ends once the court signs the final orders, and the trial date is cancelled. Arbitration may be a good option if privacy, attention to detail, and selecting someone knowledgeable and experienced in family law are top priorities.
Mediation Basics
Divorce mediation sessions can be scheduled for just a few hours, a half day, an entire day, or even multiple days. While mediation can be conducted with everyone in the same room, that is unusual. In most scenarios, the parties are in separate rooms (physically or in separate Zoom breakout rooms), and the mediator goes back and forth between the two groups. During the day, the mediator conveys settlement offers and counter-offers back and forth. Ideally, with the mediator’s input, the parties get closer and closer until they reach an agreement.
A mediator is not like an arbitrator. The mediator cannot force the parties to concede or agree to anything. They cannot make “rulings” unless the parties give them that authority. So it is possible to engage in mediation, be unsuccessful in reaching a settlement, and still have to go to trial. However, mediation has a very high success rate. Not only does each side have a duty to negotiate in good faith, but significantly, the high cost of a formal trial can be avoided if the parties are able to settle.
There is an English proverb: “A stitch in time saves nine.” This statement serves as a general aphorism that’s often true in life. However, it is almost always true concerning mediation’s three most considerable benefits — cost, civility, and control, which are discussed below.
Cost
Trial preparation is time-consuming. Most legal teams spend weeks or months getting ready for trial. Mediation usually occurs late in the process, before either side has begun final trial preparation.
But generally, the best success comes from having all the evidence, evaluations, and legal research together that you intend to use at trial. Successful mediation eliminates the costs associated with final trial preparation. And if the case does not settle, your attorney will not have to reinvent the wheel and will have much of the preparation already done.
Before mediation, lawyers must prepare a settlement letter outlining the issues, applicable law, and their clients’ positions. The letter will be accompanied by the exhibits they intend to use to prove values, reports from any experts, and a proposed spreadsheet itemizing the desired outcome.
Attorney’s fees are one of the most obvious cost savings in mediation, but certainly not the only one. Trials usually mean significant lost work for the parties, who must be present for each day of a trial. A divorce trial may take two days or two weeks, depending on the complexity, witnesses, and issues. As a result, participants lose income at a time when money is usually tight.
Finally, divorce costs are not limited to dollars and cents. These proceedings also have an emotional cost. The less stressful the end, the lower the emotional cost. The other two Cs of mediation magnify this effect further.
Civility
Until recently, post-divorce civility mattered little. In the past, spouses often went their separate ways after a divorce, even if they had children. Joint custody laws, while an improvement over the archaic custody laws of the 1960s and before, were “joint” only in terms of time. The custodial parent made almost all child-related decisions unilaterally, and the amount of contact the non-custodial parent and child would enjoy, when defined in a divorce decree merely as “reasonable rights of visitation,” was so vague it was useless.
Like most other states, Washington has a body of law that focuses on co-parenting. The Washington state legislature passed the Parenting Act of 1987, which took effect on January 1, 1988. When properly utilized, it spells out an actual residential schedule for the two parents, how major decisions will be handled, transportation details, any restrictions or conditions, rules regarding proposed relocations, and much more.
Both parents are deemed fit, and both take an active role in childrearing. Former spouses should be civil to one another, not simply for their own mental well-being, but also for the benefit of the children. Long after the dissolution is over, the other parent will still be involved in one’s future. There will be graduations, marriages, holidays, and maybe even grandchildren. The children are not the ones getting a divorce. Typically, they will still need and want both parents to remain in their lives.
Mediation encourages civility. The informal process reduces stress, and the informal environment reduces it even more. Furthermore, parents get to iron out their differences primarily on their own for the first time in a very long time.
There is a spillover effect. Frequently, children learn what they live. If they grow up around conflict, they will also live with it. However, if they learn to compromise, they live more civilly with one another and themselves.
Finally, when people are more civil towards those closest to them, they are often more civil with others, such as friends, neighbors, and coworkers. While mediation won’t necessarily change one’s perspective and outlook on life, it can help.
Control
Mediation gives the parties substantial control over the case’s outcome. Neither party can force the other to settle. Settlement will occur if both parties decide they can live with what they are gaining in exchange for what they are conceding.
Settlement will require compromises, but in mediation, you have control over what compromises you are willing to agree to. Ultimately, if the parties cannot settle via mediation, they can have the court make the decisions in a trial.
Mediation also has a spillover effect. Mediation teaches many people the power of negotiation. That’s a lesson we all can benefit from learning.
How to Contact a Diligent King County Lawyer to Explore Arbitration and Mediation as Alternatives to Litigation
Most divorce cases end with mutual agreements, not emotional courtroom showdowns. If that is your goal, we can help.
At Elise Buie Family Law, our team of empathetic family law attorneys has extensive experience resolving divorces in Washington through arbitration and mediation. For a confidential consultation with one of our experienced family law attorneys in Seattle, call us today or schedule a time to speak.
