MEDIATION AND ARBITRATION

MEDIATION OF TEMPORARY ORDERS IN DISSOLUTION OF MARRIAGE

Here are some critical considerations of the valuable use of mediation for temporary orders in dissolution of marriage cases:

Impact of Time in “Temporary”

The most important thing you need to know about temporary orders in a marital dissolution case is that the "temporary" orders remain in place for what seems to parties like an interminable amount of time. Of almost equal importance is the fact that the temporary orders end when the case is either settled or tried, a factor that is often overlooked.   Properly drafted, the initial orders that are entered control nearly every financial move of the parties and impose reciprocal restraints on both parties pending settlement or trial.  Trials often are scheduled many months into the future thus having a major impact of the parties during the Temporary order period.

Although lawyers tend to minimize the importance of temporary orders, emphasizing properly to clients that they are just that, temporary, and in theory of no impact at trial or in settlement, clients often fail to appreciate that advice.  Like it or not, the client's lifestyle is directly impacted and, in the case of a business person, the consequences for an operating business may be significant.  There is also the real possibility that a court may, in a preliminary hearing, order a party to make payments that are beyond the ability of the party to pay, leading to contempt proceedings and costly legal fees. 

Trial dates in dissolution cases are normally scheduled to occur many months after the case is filed. This is a long time in the world of marital dissolutions. A lot can happen during that time - hence the need for temporary orders to address the interim between filing and trial. Mediation becomes a solution to avoiding the length of constraints imposed by temporary orders that cannot be resolved until trial.

Financial

The intent and design of temporary orders seeks to preserve the financial status quo during the period of time between the filing of the case and the trial date. The basic idea is to keep all options open to the extent possible for the trial judge.  That sounds very simple as an objective but it can be very complicated and contentious often ending up for resolution before a court commissioner or a revision judge.  The amount of time allowed for argument of these motions is usually very limited and the parties often walk out of the court room looking bewildered and wondering what just happened in the rulings that were just issued. 

My experience in mediating temporary orders is that the process can usually be accomplished with success through mediation in half a day at a cost that is either equal to or not much greater than going to court and offers the benefit of both parties coming to a much better understanding of family finances as a result.  Unlike court, the parties are allowed to correct the other party's misunderstandings or factual inaccuracies on the spot.  Financial information can be exchanged in a confidential setting.  There is no public airing of dirty laundry. The personal attacks and fighting over personal expenditures that often occur during a court hearing are reserved or go unsaid.  Over a time span of a few hours, a temporary financial and parenting agreement can be achieved through the mediation process and the use of shuttle diplomacy. As an added benefit, the parties and counsel are often in a better place with respect to ultimate resolution of the case as a result of the mediation discovery and the conversations that ensue during mediation.  

Parenting

The benefit of mediation for the parenting plan, if one is required because of minor children, is that the parties and their counsel are focused in mediation on the subject of what is really going to work best for the children on a temporary basis.   Often, I find that the parties and counsel have never really looked at what works for the other party nor have they really reviewed the opposing party's proposed plan.  Further, the parties involved may have not really had a parenting discussion. The process requires review and discussion.  As the emotion goes out of the air and the focus is on the plans, agreement is often quickly reached.  Attorneys and their clients are frequently surprised by this phenomenon.

Conclusion

Mediation of temporary orders where the parties are in sharp disagreement will be preferable to a decision by a court commissioner.  An agreement that the parties own is much better than one imposed by a third party in a court room based on affidavits and declarations with minimal time allowed for argument.  Finally, even if the mediation fails to produce agreement the process and the information exchanged will result in a much more focused submittal and argument in court.  All involved will benefit. 

MEDIATION QUESTIONS AND ANSWERS

 by Kyle Johnson (c)

by Kyle Johnson (c)

 

  1. In the context of a lawsuit, what is mediation?

     

    At its core, mediation is a negotiation facilitated by a neutral third-party for the purpose of arriving at a settlement of a pending dispute.  The neutral third-party is called the Mediator. RCW 7.07 has the following definition:  "Mediation" means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.

     

  2. How is the Mediator selected?

     

    Normally, the mediator is a neutral third party selected by the lawyers representing the parties, subject to the consent of the parties. The mediator selection involves considerations of availability i.e., scheduling, the type of case, the issues involved, the background and reputation of the mediator, and consideration of whom the parties will best work with in arriving at a settlement.

     

  3. What is the role of the Mediator?

     

    The mediator is an independent neutral third-party who is charged with facilitating the negotiation and protecting the confidentiality of the process.  The mediator is not a judge with the power to decide your case. The mediator will ask questions that test both sides legal arguments, will focus the mediation on settlement, and may as necessary or appropriate help with evaluation of your case. 

     

  4. How much does it cost?

     

    Cost varies, depending on the skill and reputation of the mediator and the length of time for which the mediation is scheduled.  Cost may also be impacted by the type of case and ability of parties to pay.  The fees of the mediator are usually due in advance of the mediation.

     

  5. What happens during a mediation?

     

    At the beginning, the mediator makes introductions and asks the parties to sign a confidentiality agreement that makes the ensuing discussions privileged and not admissible as evidence in later proceedings. Sometimes there is a brief joint session at the beginning but more often the parties are placed in separate rooms and have little or no interaction with each other during the course of the mediation.  The mediation process is intended to be a negotiation between the parties with the mediator as a neutral party assisting in the negotiation process. Offers and counter offers are exchanged through the mediator.

     

  6. How long does it take?

     

    The length of the mediation depends on the number and complexity of issues, the type of case, the number of parties, and how long the attorneys involved estimate will be needed.

     

  7. What are the pros and cons of going to mediation?.

     

    The pros generally heavily outweigh the cons.  If successful, the case will be settled and the parties avoid the costs of proceeding through further discovery (including expert witnesses) and trial of the case.  If not successful, the parties gain a better appreciation of the strengths and weaknesses of their case as a result of the dialogue that occurs during the mediation process.  Sometimes, there are cases where the parties are so fixed in their positions that a mediation will be of little or no benefit to either side.  Of extreme importance is that the mediation process represents the best opportunity for the parties to create their own settlement with meaningful party participation. 

     

  8. Can I leave the mediation or terminate the mediation if I don't like how things are going?

     

    The mediator will usually ask that the parties stay until the mediator has determined that further settlement discussions are fruitless.  That said, you are free to terminate the mediation and leave on your own volition.

     

  9. Why use a mediator?  Why don't the attorneys just negotiate a deal on behalf of their clients?

     

    The role of mediation is not to foreclose or preclude negotiation between the attorneys in an effort to settle the case.  In many cases, the attorneys do succeed in settling cases without involving a mediator.  In recent years, however, mediation has evolved to the point where lawyers view the mediation process as a day that can be devoted solely to settlement discussions in a confidential forum in which the parties are allowed to participate.  By contrast, In a trial the proceedings are controlled by the judge and the parties participation is limited to testimony.

     

  10. Can a mediator have conflicts of interest?

     

    Yes, and there is a requirement that conflicts must be disclosed in advance. 

     

  11. How can I be assured that the proceedings are confidential and will not be used later against me?

     

    Washington has a mediation statute  (RCW 7.07) that grants a privilege to communications made during mediations; they are treated as settlement discussions and as such are  generally not subject to discovery or admissible in evidence later at trial or in other legal proceedings.  Further, the mediator may not be called as a witness to testify about the discussions. As a result, you may speak freely during a mediation session. The confidentiality agreement signed prior to the start of the mediation provides additional protection.

     

  12. Can I bring a friend or someone along as a support person?

     

    Yes, but whoever you bring will also be bound by the confidentiality agreement that accompanies mediation.  You should discuss this further with your attorney in advance of the mediation if you want to bring somebody.

     

  13. Will I be in the same room with the opposing party?  Can I avoid even seeing the other side?

     

    In mediations involving pending lawsuits, the parties are normally placed in separate rooms and the mediator engages in shuttle diplomacy. Any joint session will be brief and with the consent of the parties and the attorneys.

     

  14. How will I know we've reached a settlement?

     

    There will be a settlement agreement covering the essential terms signed by all the parties, commonly referred to as a CR2A.  The CR2A is binding on the parties and may be enforced in court if one of the parties seeks to repudiate the agreement.  The CR2A will also contain language providing that the mediator will act as a an arbitrator to resolve subsequent issues of interpretation or implementation that may arise during the drafting of final pleadings if there is a disagreement.

     

  15. What if the mediation ends without a settlement?

     

    Settlement negotiations with or without the involvement of the mediator can continue even if the case fails to settle at mediation.  Most mediators will stay involved after the end of the mediation either to arbitrate issues of implementation if there is a signed agreement or to continue assisting with negotiation if there is no agreement.  And the mediation often serves to jumpstart the settlement process so that the attorneys are able to complete the settlement post mediation.

     

  16. What if I don't want to mediate?

     

    That issue or concern needs to be reviewed with your attorney to see if you have that option. Courts are increasingly ordering mandatory mediations. 

     

  17. Do I have to attend the mediation?

     

    If you are physically able, you need to attend. In some cases, being available by phone is sufficient but you should discuss it with your attorney if you are unable to attend. The mediator should also be notified in advance if you will not be present.

THE MEDIATION HANGOVER

There is, however, a part of the experience that I want to address in this blog that sometimes occurs and it is the feeling that comes on the day after the mediation.  I call it the “mediation hangover” but it is not a real hangover, more second thoughts or reservations about what happened the day before. 

MEDIATOR STYLES MAKE A DIFFERENCE

Not all mediators have the same style in conducting a mediation. There is no set mediator formula that is followed by all. The mediator’s personality and background are very much part of the style.  That should be no surprise to students of human nature but to someone unfamiliar with the mediation process it might come as a bit of a shock to learn that the mediator's style during the mediation greatly affects the likelihood of success. This particular blog will focus on several of the different mediator styles and how they might affect the outcome.