It is common knowledge that the great majority of dissolution cases settle by agreement, usually through formal mediation, rather than via trial. Given the large number of family law matters filed in court every month, the judiciary is dependent upon all parties making a good faith effort to settle any differences out of court whenever possible.
To this end, King County Local Rules mandate alternative dispute resolution in most cases.1 While mediation may be waived in cases of domestic violence or child abuse,2 in most family law matters mediation is the most effective manner of settling disputes and avoiding the lengthy preparation and costs associated with trial.
Given the importance of this settlement tool, it is crucial to prepare for mediation in as thorough a manner as possible so as to promote the greatest possibility of settlement on favorable terms. This article provides preparation tips and mediation strategy to assist your client in receiving the best settlement possible with an efficient expenditure of costs.
Family law mediation proceedings are governed by RCW 26.09.015. This statute incorporates the provisions of RCW ch. 7.07 (the Uniform Mediation Act), except as regards admissibility of certain information in post-decree mediations when abuse, neglect or abandonment of a child, abuse or harassment of a family or household member, or frustration of the dispute resolution process without good reason is present.3 King County Local Rules require that all parties act in good faith in an attempt to resolve issues prior to trial and failure to do so may result in sanctions.4
Mediation strategy should begin significantly prior to setting a mediation date. The prudent practitioner should evaluate a case at the beginning and continuously throughout the litigation to fully understand the strengths and weaknesses of their client's positions. In the event a client has potentially embarrassing facts that might not play well in open court, or which are best to leave out of a public record, it may be advisable to attempt mediation for temporary orders rather than file a motion for the same in court.
For example, if a client has significant sex or drug addiction issues, it may deleteriously affect his or her job were such facts placed in a public court record. By mediating temporary orders, an attorney may be able to avoid declarations outlining your client's issues from being placed within public access. If the opposing party depends upon your client for financial support, he or she may share the goal of preserving your client's employment and may be agreeable to mediating these matters in service of their own financial security.
As a given case progresses, prudent counsel will know what is needed for trial and will obtain this documentation well in advance of mediation. If an appraisal is needed for the husband's business, an expert will be called in to perform the same. If information about a third-party caregiver is strategically needed in developing a parenting plan, their deposition may be taken.
If the opposing party's discovery responses contain three months of missing bank records, they will either have subsequently provided these records or they will have been subpoenaed. The wise attorney will have completed all of this work well prior to drafting the mediation materials themselves so that a full and accurate picture of the situation is present before determining your client's mediation proposal.
Once discovery has been sufficiently completed and any parenting evaluation or GAL report has been submitted, the case is likely ready for formal mediation. Due to trial schedule deadlines, it is often prudent to set the mediation date a month or two in advance so as to have a date to "work toward."
In addition, the best local mediators are often booked well out and may not be available for mediation at all until several weeks in the future. If possible, it is helpful to set the mediation prior to the start of any trial-related case schedule deadlines so as not to have your client incur such preparation costs if the case settles at mediation.
The well-versed family law attorney knows the mediators in his or her area and knows the strengths and weaknesses of each one. A more aggressive mediator may be appropriate for a client who needs direction from several sources, while such a mediator may be a poor choice for a client who either will feel bullied or will refuse to budge in response to feeling such pressure.
It is important to take into consideration (to the extent you have knowledge) the personality type and psychology of the opposing party as well. This author had an experience several years ago where a more aggressive mediator reduced the opposing party into tears, causing her to flee the mediation and thus send the case to trial. If the opposing side suggests a mediator you have not worked with before, do your homework and ask colleagues about him or her before agreeing to use them in your case.
Once you have set your firm mediation date, it is time to both prepare your submitted materials and your client. King County Local Rule 16 lists the minimum required mediation documents:
(1) proposed final orders;
(2) a financial declaration;
(3) a proposed final parenting plan if parenting is at issue;
(4) an asset and debt spreadsheet or the equivalent if division of debts and property is at issue; and
(5) any other materials requested by the mediator.5
If child support or maintenance is at issue, it is wise to submit proposed orders and financial documentation to support your proposals. If you have hired an expert to perform stock or business valuations, his or her report should be provided as an exhibit to the mediation materials as well.
If there is an allegation that the other side is an alcoholic, submitting credit card statements showing and highlighting daily bar purchases may assist in underscoring your client's position and concerns. While it is important not to bury your mediator with materials, it is also important to provide not only a clear and concise argument for your client's position but also sufficient independent documentation supporting that position.
It is also important to prepare your client for the mediation process. In a case with children and contested parenting issues, the mediation will likely last all day. In such cases, advise your client to take the entire day off work and obtain childcare for the evening if needed.
Even if mediation is set from "9 to 5," it is common for the process to "go late" and your client should be prepared for this possibility. This author also advises her client to dress very comfortably and in layers, and to bring snack food and a magazine or book for periods when the mediator is with the other party.
It is important to have a good sense as to your client's priorities prior to mediation. Is Christmas Day of utmost importance to a client or barely celebrated? Is your client ambivalent about Thanksgiving, but determined to have at least two weeks of vacation with the children every July for a longstanding family travel tradition?
It is prudent to discuss with the client, either in person or via telephone, a few items to "give up" early on in the mediation that the client has less interest in and to then hold out for items of more importance as the negotiations continue. It is also important to know the client's "bottom line" with respect to the major areas of contention and whether receiving more in one area might change the bottom line in another area.
The attorney should do his or her own preparation a day or two prior to mediation as well. He or she should re-read all of the mediation materials and exhibits from both parties. It is also helpful to create a checklist of all items in dispute so as to not miss smaller items as the mediation day progresses. It is very easy to miss "how the parties will file their taxes" or "who will hold the children's passports" after nine hours of continuous mediation, and a checklist will minimize this risk.
Unless you are certain that your chosen mediator will have a CR2A agreement present and ready for signature at the mediation, the wise counsel drafts a general CR2A in advance and brings it to the mediation. It is also helpful to bring a laptop and printer to the mediation as well so that clean copies of some final orders may be drafted and signed at the mediation itself.
At the mediation, there is a fine line between making strong recommendations about a given offer and pressuring your client to settle. A lawyer must exercise independent professional judgment and render candid advice.6 In mediation, that candid advice should include what the lawyer believes the likely outcome regarding a given issue would be at trial.
While an attorney may knowledgably and reasonably believe that a given settlement offer is better than their client could ever hope for at trial, acceptance of the same is nonetheless the client's decision and his or her decision to reject an offer should be respected.
When a client has decided to accept a settlement offer, the prudent practitioner should make sure that their decision is not based upon feeling rushed or pressured in any manner. The attorney should explain the binding ramifications of a signed CR2A agreement and how a signature on the same precludes the client from changing their mind later.7
It is not uncommon, even when the mediator has prepared their standard and typed CR2A in advance, that handwritten provisions or attachments will be added to the binding agreement. In such instances, it is important that the handwriting be legible and the intent of the parties clear.
While normal contract principles apply to the interpretation of a CR2A,8 legibility issues can result in costly litigation that could be easily avoided.9 Further, if your CR2A agreement submits some remaining disputes to binding arbitration, the language around the issues to be submitted should be very clear in light of the court's strong presumption in favor of arbitration.10
If properly prepared for, mediation can settle all but the most tenacious of disputes at a significantly lower cost than through determination at trial. It is therefore wise to prepare thoroughly throughout the case for an effective mediation and the prudent attorney factors such considerations into his or her strategy throughout the case.
1 KCLFLR 16. Alternative dispute resolution is not required in cases involving domestic violence, child support-only modifications and where waived by court order. KCLFLR 16(a).
2 RCW 26.09.016, KCLFLR 16(a)
3 RCW 26.09.015(3)
4 KCLFLR 16(d).
5 KCLFLR 16(c).
6 RPC 2.1.
7 Taking a line from one of our very experienced local mediators, this author often refers to a CR2A as a "no buyer's remorse" document.
8 Morris v. Maks, 69 Wn. App. 865, 868 (1993).
9 See generally Marriage of Pascale, 173 Wn. App. 836 (2013).
10 See id. at 842 (citing Davis v. Gen. Dynamics Land Sys., 152 Wn. App. 715, 718 (2009)).