If you’re like most of my clients, you want an easy, private divorce process that is low-stress. The problem is you don’t know how to achieve that. Mediation is the most simple solution.
Why should you work with a family mediator? Mediation is required in most counties for family law cases, so often it’s in your best interest to start with mediation and see if an agreement is possible. People that mediate within the first thirty days of a conflict end up resolving their issues in less time and typically spend less money than those who put it off. Through mediation I’ve seen entire divorces completed without anyone ever setting foot in a courtroom.
Many people view mediation as the last resort before trial, but from my experience as a mediator, I think you should consider it from the beginning. If you’re interested in learning more about how a mediator can help you, this article will explore Washington mediation in depth. Ideally you will understand the process, the different forms of mediation, and you’ll be able to decide if mediation is a good option for you.
Table of Contents
1. Types Of Mediation
2. Benefits Of Mediation
3. How Do I Know If We Are A Good Fit For Mediation?
4. Drawbacks to Mediation
5. Mediation Process
6. How Long Will Mediation Take?
7. What Will Mediation Cost?
There are three different types of mediation: transformative, facilitative and evaluative. Each style has its strengths and weaknesses. Here’s a guide to help you know what type might be right for you.
A mediator with a transformative approach focuses on empowerment and recognition rather than problem solving. The goal is to change how each party responds to conflict. The mediator focuses on how the parties talk to each other, rather than the specific issues.
Transformative mediation is usually a part of any mediation, whatever the style. The mediator wants both parties to be heard and to understand and feel accepted in their perspective. Once both parties feel understood, then the mediator and the parties can explore a range of choices as well as a better understanding of each other’s perspective.
Evaluative mediators focus on the issues, rather than the feelings. When people hire me they often expect this to be my preferred style, since it is the style of many attorney mediators.
As an evaluative mediator you take the role of an expert. You try to problem solve and create solutions for the participants. Often the mediator will make recommendations based on the law or past experience.
This style anchors the participants around precedent in the law, rather than what the participants feel is fair based on their circumstances. It can be useful in complex cases and situations where each person feels it’s best if a judge just decided. The major drawback to evaluative mediation is that participants often feel less satisfied with the outcome, since agreements are based on mediator recommendations opposed to the parties’ solutions.
A facilitative mediator doesn’t focus on the law or past experience, but instead encourages the participants to find solutions that work for their situation. The mediator works to find the underlying interests for each party. For example, do they want a settlement that is fair or are they worried most about safety and security? Once these interests are identified, the parties generate options that help each party reach the goals that are most important to them.
With this method, a mediator won’t make recommendations or weigh in based on their expertise. It is up to participants to find their own solution. However, a good facilitative mediator will reality test any proposed agreement. This means you’ll be asked questions, which will force you to evaluate the strength of your plan in the real world. Often this leads participants to tweak their initial agreements and make them stronger.
The major drawback to facilitative mediation is that those involved could reach an agreement, which goes against what a judge would rule. In these cases, the agreement is still valid and enforceable, but one party may have achieved a better result in court.
On the other hand, since the agreement is created by the participants it is tailored to their situation. Parties who reach an agreement through facilitative mediation generally have a higher level of satisfaction with the outcome, since the negotiations are based on their lives and circumstances, instead of prior court rulings.
Most mediators combine elements of these styles. When interviewing potential mediators, ask what style they prefer and find out why they think that form of mediation would work well for you.
Efficiency and support are the major benefits to divorce with a mediator or mediator team. The biggest step in your divorce is coming to an agreement. A mediator can help you avoid having the same fights over and over.
The mediator will identify your goals and concerns and help you both support each other through a discussion of how to manage these in a fair process. Mediation is more productive because your discussions will stay focused. Mediation also allows both parties to be sure that they cover everything. Both partners will get equal time. This is more fair and in the long run, saves time.
In addition to saving time, mediation allows both parties to feel more positive about the end of their relationship. Change is hard. In mediation, the partners can work out their differences and know that they both did their best to understand and to be fair to the other side. Most people are surprised by how much better they feel at the end of the mediation process.
There are four requirements to mediate, which must be met by both parties. The following requirements are specific to divorce, but can also give you insight into other issues, such as parenting plan decisions and support payments.
First, both parties can recognize that there is a divorce pending. Your mediator cannot break up with your spouse for you. Mediation is best handled after both partners agree to separate, and want to focus on the most fair way for the divorce to happen.
Second, both parties are willing to mediate in good faith. Mediation is an equal process. Both parties must be willing to accept that a fair result might not end with everything that one partner wants. In most situations, both parties get some of what they want, and both parties give up a little bit too. Mediation only works if both of you can be open and understanding about areas where you might not both want the same thing.
Third, both parties must be willing to keep to the terms of an agreement. Your mediation can be enforced in court, if you both agree to sign the required paperwork. However, for the most part it will be up to you to follow through with your agreement. If you participate in mediation you have to be willing to follow through with the results.
Fourth, both parties must participate voluntarily. Mediation is an amazing process, and most couples are very happy they stayed out of court, but one party cannot force another party to mediate. Mediation only works if both parties agree to take part and want to work out their agreements together.
Mediation may not be for everyone. As discussed above, both parties must be willing to work with each other. If one party feels coerced or controlled, then the mediation will fall apart, and the parties will end up in court anyway.
Mediation requires the parties to take control of what they want, and to accept responsibility for their own outcomes. The parties can’t blame each other. They share ownership of the process. Not everyone needs or wants to talk about their situation before they leave the marriage.
Procedurally, mediation can also be a little bit different than a typical lawsuit. Washington Rules of Professional Conduct require the mediator to advise the parties to hire an attorney to review the agreement before it’s filed in court. This is optional, but it’s a good step because it can help avoid any conflict of interest.
The mediation process is different for each mediator, but at Truce Law our mediation process takes place in seven phases.
Prior, to any mediation you’ll complete a short questionnaire. Your answers will give your mediators a sense of the issues and what to expect during the session. Try to be honest about not only the issues holding you back from reaching an agreement, but also what you think is difficult for the other participant. Filling out these initial forms often helps people identify the other party’s position, which is the first step to reaching a settlement.
Mediator Opening Statements
Mediation begins with a short speech from the mediators outlining the process. This opening statement will give you a chance to meet your mediators and hopefully get comfortable the process. You’ll have a chance to ask questions and your mediators will set expectations.
Participant Initial Statements
After the opening statement, both participants will have a chance to make initial statements. This should be uninterrupted time for each person to communicate the issue from their point of view. Sometimes participants have a hard time not interrupting. However, it’s important to remember that this time is really important for the mediators, since it lets them see the issue from each side. Both parties will have an equal opportunity to share their perspective.
After each person has shared it is time to build an agenda. The agenda is made up of specific items proposed by the parties that will be discussed. For example, one person may ask to discuss the retirement accounts and the other may request parenting time. We’ll write down this agenda and refer back to it throughout the process. Ideally we’ll focus on one agenda item at a time, moving to the next once we’ve resolved the first.
Once the agenda is created, we’ll choose an item and both parties will begin negotiations. This is the brainstorming stage. The mediators will be there to encourage communication and ensure the parties are treating each other with respect, but the bulk of the negotiation is carried by the participants.
If at any time the mediators feel a break is necessary they may call a caucus. During a caucus, one person will leave the room, while the other stays and speaks with the mediators one on one.
A caucus is a chance for the mediators to meet with each person individually and discuss how things are going and what could go better. Any items discussed during caucus will be kept confidential by the mediators. However, participants are allowed to bring up what was discussed once the full group is rejoined. Both parties will have a chance to meet individually with the mediators during this stage.
Lastly, once negotiations are complete we put together a settlement agreement. This document outlines any agreement made and participants have the option to submit it in court if they both agree. The document prepared at the conclusion of a mediation session will be rather informal, but cover all agreements reached by the parties.
If the parties choose to do so, an attorney can prepare formal legal documents for the court that each party will sign. For example, in King County, a divorce will require family law forms 201, 001, 241, 231, 140, 130, and a vital statistics form, as well as a declaration for the court.
Many attorneys help parties work out a CR2A or settlement agreement that will be kept private. This agreement, and a debts/asset spreadsheet, divides any money, property, and assets. This agreement is NOT filed with the court. It is kept private unless the parties have a dispute, and one former partner files the agreement in court in order to enforce its terms against the other partner. The separation agreement, or CR2A, is a contract that’s enforceable like any other contract.
To file the documents with a court, either the parties or an attorney can take the agreement to court. Uncontested divorces are settled in the Ex Parte Department.
The length of mediation will depend on the issues and what the parties are trying to accomplish. For example, at Truce Law our basic sessions last three hours. A three hour session meets the court’s mandatory mediation requirements and typically is enough time for participants to resolve their issues.
In some cases, people want more time and in those cases we do offer full day sessions. They can get long, but if both parties are committed to resolving the issues it can be a rewarding day.
On the other hand, multiple half day sessions can be productive. We typically target one or two agenda items per session and the short sessions gives everyone a chance to regroup before the next meeting. It’s really up to the individuals.
The cost of your mediation depends mostly on how much time you spend in the process. Most mediators charge an hourly rate. In King County, $300 an hour is normal and a comparable hourly rate is typical for any document preparation.
At Truce Law, expect to each pay $675 for the first mediation session with hourly fees capped at $1800 per person. Additional services can be added on for prices ranging from $275 to $1350. We find these session can be very productive if parties take part early in the divorce process.
We also offer recurring sessions for parents. Similar to an annual checkup at the doctor, parents can meet with us once a year to go over parenting and support and discuss if any changes should be made. This can save parents money, since it’s an easy way to stay aware of the issues. It also helps them find solutions for each upcoming year, instead of feeling like they need to make changes through the court. Lastly, it keeps the relationship between both parents amicable.
I hope this gave you an understanding of how mediation can help you reach a fair settlement on your terms. If you’d like help with your mediation, please call Truce Law at 206.409.4086 or send us a message. Thanks for reading.
Elizabeth is an active mediator and the principal attorney at the Divorce Without Court: Westside Collaborative Law PLLC. Her team uses techniques of collaborative law to preserve relationships and lower stress in high-conflict situations. Elizabeth Steen, J.D., began her legal career as an intern in the United States Senate after graduating from Indiana University Bloomington – Maurer School of Law in 2007. She is a member of the Pierce County Center for Dialog & Resolution Mediation Practicum, West Seattle Collaborative Law, and the Family Law Practice Group for King County Collaborative Law. She has been a licensed attorney for 11 years.