In a divorce proceeding, there are likely to be disagreements between divorcing spouses. However, it is best for a couple to come to an agreement on key issues like child custody, child support, and the division of assets if possible. If the couple cannot or will not reach an agreement, a judge will take that decision away from them and rule on it from the bench. In a contested divorce case where the couple is not yet in agreement, mediation serves two important functions: It keeps the decision-making power in the hands of the spouses and frees up space on court dockets that are already bursting at the seams.
What Is Mediation?
In mediation, divorcing spouses sit down in a room, or two separate rooms, with their lawyers and a mediator to attempt to resolve any disputed issues pertaining to the dissolution of their marriage. A mediator is a disinterested, neutral party. Their job is to facilitate cooperation and communication between the parties, thereby helping them reach as many agreements as possible.
How the mediator accomplishes this is up to them. Sometimes, all parties (each spouse with their lawyer and the mediator) sit in one room and talk through the issues. Other times, there may be so much animosity between the spouses that sitting in the same room is not productive. In this scenario, the mediator is likely to sit each spouse in a separate room with their lawyer. The mediator will then move from room to room, working with each party and relaying offers and objections until either a compromise or impasse is reached.
You must keep in mind that the mediator is not an arbitrator. In arbitration as in court, the decision of the arbitrator is final and both parties must abide by that decision. Conversely, a mediator makes no decisions. He or she is merely a facilitator that tries to bring the parties as close to an agreement as possible. The decision is still firmly in the hands of the spouses. If an agreement is reached, the terms of the agreement are put into writing and become binding upon the parties.
Is Mediation Required for a Washington State Divorce?
The simple answer to this question is that it depends on where the divorcing couple lives. The State of Washington does not require mediation, but it is highly encouraged as per RCW 26.09.015. Even though the state does not mandate mediation, each county can choose to make mediation mandatory if they desire. Note that, because the backlog of divorce cases continues to worsen due to the COVID-19 pandemic, many of these counties who do not already require mediation may choose to do so in the near future. You can find the recent county rules here or speak with an experienced attorney to see if mediation is required in the county where you reside.
Even if you live in a county that requires mediation for divorce, this requirement can be waived. The most common reason for a divorcing spouse to request a waiver is when one partner is abusive and domestic violence is an element of the case. Mediation only works as intended when both parties have equal power within the relationship. In cases of domestic violence, one party tends to wield control over the other party, even if they are negotiating from separate rooms with legal counsel present. In many cases where this power dynamic is obvious, a mediator may refuse the assignment since the victim of violence is likely to consent to anything out of duress. If you choose to waive mediation, one party must file a motion and receive a court order that specifically grants the waiver.
Should I Use Mediation?
Even if mediation is not required in your county, you may want to seriously consider doing so voluntarily. It is your last chance to keep intimate family decisions between you and your spouse, instead of turning those decisions over to a judge who doesn’t know you or your family. If retaining the power to make personal family decisions is not enough of a reason, the following additional reasons may encourage you to do so.
Mediation is generally less expensive
Taking your divorce to trial before a judge means your attorney will have to prepare extensively. This translates into many expensive, billable hours of legal work. Settling the key points for your divorce through mediation removes the need for any of this work and can be far less expensive.
Mediation will get you a resolution quicker.
The court system was backlogged before COVID-19 arrived, and it has only gotten worse due to pandemic-related courthouse shutdowns. Simultaneously, the divorce rate within the US has surged, and this increase is expected to continue into the foreseeable future. By settling your issues at mediation, you sidestep the need to go to court and can finalize your divorce much faster.
Mediation is flexible.
A courtroom is a formal and somewhat intimidating place. The judge, who doesn’t know you or your family, is charged with making critical family decisions that you are obligated to adhere to, regardless of whether you agree with the ruling or not. The decision of the judge is final and inflexible. Mediation happens in a far less formal environment and gives you a chance to establish amicable negotiation conditions. If the mediation is unsuccessful, you can always turn to the courtroom for the settlement of irreconcilable disputes.
Speak with a Trusted Lawyer at Blado Kiger Bolan, P.S.
The experienced attorneys at Blado Kiger Bolan, P.S., serve as counsel in many areas of law. We look forward to sitting down with you and discussing your case. We can help you determine whether your best next step is attempting mediation or going to trial. If a trial becomes necessary, you can be confident in knowing that you have remarkable, highly experienced lawyers at your table. We encourage you to call us directly or contact us online today for an initial consultation.