Mediation. Arbitration. What is the Difference?
As you begin your litigation journey, you may start to hear terms like alternative dispute resolution (ADR), mediation or arbitration. ADR is an option for resolving disputes outside of court. Mediation and arbitration are sub-groups of ADR. In King and Snohomish counties, all litigants involved in family law cases, that do not qualify for an exemption, are required to attend mediation. See KCLFLR 16 and SCLFLR 94.04(c). Many cases resolve the entirety of the disputed claims through mediation.
Mediation.
Mediation is arguably the most used form of ADR. Mediation is an agreement to use a neutral third party, ‘the mediator’, to resolve the issues of your case. A mediator serves as a sort of guide for the negotiation discussions. In family law, most often we utilize what is called, “shuttle mediation”. You and your attorney, if you are represented, will be in one room, while the other side and their attorney are in another room. This can be virtual or in person. The mediator “shuttles” back and forth from room to room. You will normally never see or speak with the other side during mediation.
During the discussions, each side is given an opportunity to agree or disagree with the opposing party’s proposal(s). Anything you say or propose in mediation cannot be used against you if your case ends up going to trial. Everything remains confidential with few exceptions. The confidentiality encourages people to negotiate without the threat of it coming back to harm their case at trial. Compromise is the key to a successful mediation. Both sides will need to make concessions and be willing to find solutions that work for both parties.
At the end of the mediation, you will memorialize the terms of any agreement reached in a CR2A Stipulation. This document is enforceable upon signing and will guide the drafting of final orders. Do not sign unless you agree to comply with the terms. That does not mean you agree to all the compromises needed to get to that point. However, once you sign, there are very few reasons a CR2A would not be enforced later. The final orders are the documents then submitted to the Court for entry and to officially resolve your case.
Arbitration.
Arbitration is most commonly used to settle issues after a final parenting plan has been established but can also be used for the finality of an original parenting plan. The key difference between arbitration and mediation is an arbitrator makes a decision for the parties much like a judge. The parties select an Arbitrator just like they would a mediator, via agreement. Each side is permitted to submit written materials outlining their various positions and, in some cases, appear before the arbitrator for live testimony. After hearing from both sides, the arbitrator issues a written decision. Both parties are permitted to ask for clarifications and/or modifications to the ruling that is issued by an arbitrator.
As of January 1, 2024, the State of Washington has enacted the Uniform Arbitration Act. This act guides family law matters and there are new requirements to be aware of if you agree to submit your case to arbitration. RCW 26.14.
Looking to settle your case outside of the courtroom, ask your attorney if mediation or arbitration is right for your case.
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Beresford Booth lawyers are experienced, dedicated professionals, prepared to answer your questions and guide you through the process based on your needs and goals. As a result of our experience, we provide you practical advice and set reasonable expectations for the process. Together, we develop and implement a case strategy based on your goals. Beresford Booth is a Primerus law firm. Primerus is an international society of top-rated independent law firms.
Family law disputes can be stressful and emotional. Our family law group can take some of the weight off your shoulders. To request a consultation, please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.
