Mediation is a process where all the parties (for example, the two parties to a divorce, or all the beneficiaries to a disputed estate) meet with a mediator to reach a mutually acceptable, legally enforceable agreement. Mediation is, essentially, facilitated negotiation. Parties to most family law actions are required under the court rules to engage in mediation before their case goes to trial; in other types of cases, parties choose mediation because they can use the mediation process to resolve aspects of a case that a judge would not be able to address.
Even though most people go into mediation thinking their case will never settle, most of the time — it does. Unlike trials, which are public proceedings in courtrooms, mediations are private, and instead of someone else making decisions for you, YOU control the results. This is why mediation is fast becoming the most popular form of alternative dispute resolution.
Sometimes all the parties are in one room during a mediation and break out into “caucuses” when they need to confer privately; other times, each side is in a separate room, and the mediator shuttles back and forth between those rooms until a settlement is reached. Either way, the goal of mediation is to reach a mutually agreed settlement, which will be memorialized in a signed agreement (often referred to as a “CR2A Agreement”) signed by all parties; sometimes, as part of that settlement agreement, other documents are also signed.
Types of Cases That Can Be Mediated
Mediation is most suited to cases with an “emotional” component: divorces, custody disputes, distribution of probate estates, guardianships, etc.—in other words, the types of cases where the parties are related in some way, or will be dealing with each other again in the future.
Family law cases can be particularly challenging to mediate because emotions run high and the issues are often both financial (division of assets and retirement benefits, who’s going to pay which debts and credit cards, responsibility for payment of any children’s extracurricular activities, etc.) and non-financial (residential schedules/parenting plans [including holidays and vacations], who gets the family pets [and does the other side get “visitation”], etc.) But family law cases can also benefit the most from a successful mediation, because the parties work to figure out mutually agreeable solutions to their issues—which is exactly what they will be called upon to do again and again over the years. Unmarried persons in committed intimate relationships and persons in same-sex relationships often have unique, special issues that come into play as well.
Guardianship cases can include issues such as “visitation” schedules with the ward, who’s going to have a say in things (and how much of a say they will have), and who’s going to perform particular tasks. The dynamics can be particularly challenging when the ward has been in a long-term relationship that may not always be appreciated or understood by the ward’s biological or legal family.
Probate and Estates
Probate and estates can involve arguments over things like who’s going to get Mom’s favorite painting, or how to share the use of the vacation cabin that was left to all the kids. And when the deceased was in a committed intimate relationship the issues increase exponentially.
Most mediations are “shuttle mediations,” where the parties are separated through the entirety of the mediation. During mediation, Elizabeth utilizes a combination of facilitative and evaluative approaches. Mediation is generally most successful if the parties feel they are on as “even levels” as possible during the mediation session, and having non-parties present during mediations can oftentimes make the session less productive. It is therefore our general policy not to have non-parties or support persons present during mediation absent prior agreement.
Elizabeth Turner is a trained, skilled mediator who practices evaluative, facilitative mediation and has been granted the designation Certified Mediator by the Washington Mediation Association. Effective March 15, 2020, all mediations are conducted via Zoom or electronic means, with no in-person sessions. To schedule a mediation, contact our office; while most mediations are held Monday – Friday during normal business hours, Saturday sessions are available on a limited basis.