Common Questions About Mediation & ADR
Knowing how to proceed with negotiations and decisions about your future can be difficult when you are going through a divorce or separation. Regardless of how you choose to resolve your disputes, alternative dispute resolution (ADR) and mediation are often essential procedures that are included in the process. Below, we at Clement Law Center answer some of the most frequently asked questions about these methods of resolution.
What’s the Fastest Way to Schedule a Mediation in a Family Law Case?
How Can I Mediate If My Spouse/Partner Refuses To Participate?
Is Mediation The Same As ADR (Alternative Dispute Resolution)?
Is Mediation The Same As A Settlement Conference?
In most family law cases, your mediation, or ADR, is required by a specific. Sometimes that deadline can sneak up on you, and you may only have a couple of weeks or even days to meet the deadline.
If the deadline is missed, the Court can cancel your upcoming motion or trial for weeks or months. In some situations, the Court can even dismiss your case and make the parties start all over again. That can obviously disrupt your plans and cause unnecessary delays and expense.
You need to do whatever you can to meet the ADR mediation deadline. The problem is that most mediators are very busy, and many mediations must be scheduled for a full day. The best mediators are often scheduled out for two or three months. They may not be available until after your deadline has passed.
What can you do?
Even the best mediators sometimes get cancellations at the last minute, which may make them suddenly available. You may need to call several good mediators to get a date that comes before the mediation deadline has passed. That is the best solution to your problem, since the success of your meditation often depends on the skill and the experience of the mediator.
It may seem clear that you and the opposing party will not come to an agreement, but setting up a mediation is not a waste of your time. If agreement is highly unlikely, all you need to do is schedule a half day mediation. Then you can at least show the Court that you had your mediation, and your motion or trial date will not be stricken.
Even in the most bitterly fought cases, a miracle sometimes occurs, and agreement is reached in mediation. When that happens, you can cancel the trial. Mediation has saved you thousands of dollars in fees and expenses. Resolving even some of the issues in mediation will still save you the cost of having to produce evidence related to them at trial.
When your back is to the wall with a mediation deadline, don’t despair. Contact us or call us at 253-357-5395 to discuss your needs and speak with our experienced mediators to schedule your mediation as soon as you can.
Since mediation is often required in family law cases it can be difficult to know how to proceed if the other party does not comply. What exactly happens if the opposing party refuses to cooperate with you in scheduling a mediation? If mediation is not completed as required, the court might cancel the trial or a pending motion hearing and, in some cases, might even dismiss the case for noncompliance.
So, what should you do if your spouse or partner refuses to mediate? One thing to keep in mind is that if you are required to mediate, so is the opposing party. Therefore, it is important to document your attempts to mediate. If you can show the court that you have done your best, but your spouse has not cooperated, the court most often will allow the case to proceed without canceling any court hearing.
There are ways to document your efforts that prove your attempts to schedule a mediation. You can start by e-mailing the opposing party to remind them of the deadline and court requirements for mediation. Even if there is no response, you should at least e-mail the opposing party and suggest a specific mediator and a time when the mediator is available.
If you schedule a mediation by yourself, it can be helpful to make sure that your emails to and from the mediator are copied to the opposing party and include the name, address, date, and time for the proposed mediation. These emails can later be used in court as evidence of your good faith attempts to schedule mediation and prove the opposing party’s bad faith.
It may also be helpful to your case to show up at mediation, even if you believe the opposing party will not be there. You can then file a motion to allow the case to proceed without mediation. You could also ask the court to order the opposing party to appear for mediation at a specific time and date. The opposing party’s violation of that court order would probably be contempt of court. Under these circumstances, the court should allow the case to proceed even though there has been no mediation.
Alternative dispute resolution (ADR) refers to procedures that may result in a successful settlement of a court case. ADR is a process that is often required in family law cases by statutes, court orders, or court rules. Mediation is the most common type of ADR. Mediation is an in-person or digital conference where the parties and their attorneys meet with a trained mediator and attempt to settle their case.
Failure to comply with a mediation requirement in your family law case may cause the court to cancel or reschedule your family law motion or trial date.
If you have a court order that requires ADR but does not specify what type of ADR is required, mediation will satisfy this requirement. If you do not mediate as the court order requires, the court will not allow your case to proceed and may cancel your court hearing or trial.
In mediation, the goal is to settle all or some of the issues. If mediation succeeds, the parties’ agreement is reduced to writing and signed pursuant to Civil Rule 2A. This is called a “CR2A” agreement. The CR2A agreement, if done properly, is binding on both parties. Either party can then ask the court to enter orders which will adopt the provisions of the CR2A agreement.
Successful mediation is usually a “win-win” solution for both parties. Agreed orders through mediation can save the parties thousands of dollars, emotional turmoil, and a lot of wasted time. After all the agreed final orders have been entered at court pursuant to the mediated agreement, the case is over. The trial and any scheduled motions can be canceled.
Mediation is one type of Alternative Dispute Resolution (ADR) that meets the requirements of a court order or rule that requires ADR before the court will allow a case to proceed, a trial to be held, or a motion to be scheduled. A “settlement conference” may or may not be a type of ADR. The term “settlement conference” is often used generically to refer to any conference where a settlement is discussed, even if only the parties or their attorneys are involved. That type of settlement conference is not a type of ADR. A settlement conference that a mediator or a Judge conducts is a type of ADR and will satisfy a court order or process rule that requires ADR.
The rules and procedures for both family law mediations and settlement conferences are very similar. In some courts, they are virtually the same. In some ADR agencies, only the parties are involved in a settlement conference, even if they have attorneys. In King County, if a case gets close to trial and the deadline for ADR has not been met, the trial judge will sometimes order the parties to participate in a settlement conference which is conducted by a different judge so that the trial date does not have to be stricken or rescheduled.
The intention in both ADR mediations and settlement conferences is for parties to come to an agreement on as many issues as possible. If you have questions about mediation and the process, contact Clement Law Center for guidance and more information.