Education & Reference
Types of Case
Cases are generally categorized as a family law case, or a civil matter case.
Family law cases include marriage dissolution, legal separation, parenting plan, child support, spousal maintenance, nonparental custody.
Civil matters include personal injury (tort claims), business/commercial, probate/guardianship/trust, land use, real estate, and other civil claims.
Criminal matters are processed through the Superior Court, District Court, or Municipal Courts. There may be some diversion, deferment, or other alternative to trial available. Criminal matters are not handled through ADR processes.
Types of Alternative Dispute Resolution services
You can search for ADR services by type of service.
ADR services are alternative to traditional determination of a legal dispute by a judge, using the adversary system. There is a wealth of variety.
Mediation means a process in which a mediator who is neutral and independent helps the parties reach an agreement in a private and confidential way. Mediation can be “facilitative” or “evaluative” or some combination of the two.
Arbitration means a process in which an arbitrator who is neutral and independent decides a case in a process less formal than at court. Arbitration can be done according to agreed or required sets of rules, depending on the type of case or agreements of the parties. Child support and monetary cases less than $50,000 in controversy.
Collaborative law is a type of law practice in which the parties agree not to use the adversary system and instead use a problem solving approach with an expectation the parties will negotiate an agreed resolution.
Other ADR processes include combinations, such as mediation-arbitration, in which a matter begins with a mediation but is converted to an arbitration. This is sometimes used when time runs out for the mediation session and the parties agree the matter can be decided by the mediator. Often parties agree an attorney mediator should reserve authority to resolve disputes in converting a CR2A agreement to final orders.
Types of Mediation.
All mediations include a neutral, independent person who assists the parties to come to their own resolution or agreement. There are two main types of mediation provided by attorneys: evaluative and facilitative. A mediator who is an attorney does NOT provide legal advice to the parties, and cannot ethically do so.
Most people with an active case in the court system want or need an evaluative type of mediation. An evaluative mediation is often called a “mediated settlement conference,” or “settlement conference.” An evaluative mediation is one in which the mediator offers his or her evaluation of the likely court resolution of the case, that the parties can consider in reaching their own decision. The mediator does NOT decide the case. The parties in a settlement conference usually are represented by their own attorney, but not always. Often there is high conflict with a pending case so a caucus or shuttle style of mediation is used.
People in dispute who have ongoing relationships often want or need facilitated mediation. Ongoing relationships include family, neighbor, and business or workplace relationships. In facilitative mediation, the mediator does not offer an evaluation of the merits of the case. The emphasis is to facilitate the communication between the parties and consideration of underlying interests of the parties.
Often a skilled mediator can offer a mediation including elements of both facilitative and evaluative mediation if the parties want or need it.
A mediator who is an attorney does NOT provide legal advice to the parties, and cannot ethically do so. If you need legal advice, you should consult an attorney. If you cannot afford an attorney, consider these resources:
How to select a mediator.
You want a good match between the mediator and the case. To assess whether there is a good match, ask these questions:
- Is the mediator trained or experienced in mediating your type of case?
- Is the mediator trained or experienced in providing the type of mediation you want?
- How much will it cost?
- What style of mediator do you want?
- Is gender important?
- Are some special skills important, such as a foreign language proficiency or cultural sensitivity?
- Where will the mediation be? Does the mediator provide a location? Will shuttle/caucus method be used?
- Does the mediator have references?
- How conflicted are the parties?
- Is this early in or before the legal process, or on the eve of a trial or hearing?
This website is limited to attorneys who are also mediators. Attorney mediators have legal training and experience which may be important to assist in neutrally evaluating some components of the case. Non-attorney mediators may be qualified to mediate disputes involving legal issues, depending on their experience and training, and the type of mediation needed for your case.
Domestic Violence and Mediation.
If there is domestic violence between the parties, mediation is often not appropriate. If the parties are represented by legal counsel, and the parties are kept in separate rooms as the mediation is conducted, mediation may be successfully done.
Mental Illness and Mediation.
If a party is mentally ill or decision-making is otherwise impaired, a mediator will need to know so the mediation session can be structured to accommodate the impairment. The mediation session may take longer than one without mental illness present, or it may be structured differently.
Mediation involving hearing impaired participants are entitled to interpreters appointed at public expense under RCW 2.42. Arrangements must be made in advance through the Superior Court administration office.
Mediation involving participants who do not communicate effectively in English may use an interpreter. If the party is indigent, the party may request in advance of the mediation from the Superior Court the appointment of an interpreter at public expense. Some mediators are proficient in a foreign language to assist in the mediation process.
Telephone or Skype participation.
If a party is geographically distant or otherwise unable to be personally present for a mediation or ADR process, sometimes a telephone or Skype participation can be arranged in advance of the mediation session or arbitration. As communication is key to successful participation, both telephone and Skype are less desirable than personal presence.
Ethics for mediators.
There is no mandatory ethics code for mediators in Washington State. A mediator may voluntarily choose to comply with the ABA model ethics code, the Washington Mediation Association ethics code, or other ethics code. The ethics code for mediators is different than the ethics code for attorneys. Most mediator ethics codes emphasize mediator commitment to inform/educate the participants as to the process, maintain neutrality and impartiality, maintain confidentiality as required by law or agreed by the parties, refrain from offering legal advice, maintain the self-determination of the parties, maintain their skills and limit offering services to areas of the mediator competence.
Confidentiality in mediation.
Generally, what is talked about or disclosed in a mediation is confidential and cannot be disclosed by any participant or the mediator. There are exceptions to the general rule involving threats of violence or unreported abuse. Confidentiality helps parties feel free to try out ideas or creative problem solving.
Cost of mediation or ADR.
Cost of mediation varies. Most attorney mediators charge for services by how much time the mediation will take. Frequent units of time are per hour, or a half day or full day. The fee arrangements should be clearly understood. Like many things, lower cost is not always a better bargain. Superior skill may command a higher fee. There is variation in terms for advance payment, cancellation policy, travel expense, terms for payment.
How long will the mediation take?
Most family law mediations will take at least a half day (3-4 hours). The more complicated and conflicted the parties, and the more facilitative the type of mediation, the longer the mediation will take. An hourly rate is often used when the length of the mediation is uncertain. A mediator often cannot predict with precision how long a mediation will take to conclude. It is wise to allow enough time for the mediation so well-considered decisions can be made.
What is success?
Success in mediation is when the process is successfully followed. An agreement is reached in most cases, but not all. A mediator does not decide the case – the participants do. Some cases need to be resolved through the traditional court system, when the parties cannot reach agreement themselves. A mediator cannot ethically pressure or coerce a party to reach a settlement. Voluntary agreement is a key component of mediation.
What is a CR2A Agreement?
CR2A refers to Superior Court Rule #2A, which provides that if the parties put their agreement in writing and sign it, it is binding on them and enforceable by the court. The Superior Court always retains authority to approve any agreements regarding child custody and child support, and it will not automatically approve agreements between the parties. The mediator can write down the agreements of the parties.
Laws applicable to mediation.
In Washington, the Uniform Mediation Act is at RCW 7.07. If ordered by a court such as in family law, RCW 5.06.070 relating to confidentiality and privilege also applies. Family law mediation is addressed in RCW 26.09.015 and 016. Case law establishes that the Superior Court retains the authority and obligation to approve any agreements involving children. Alternative dispute resolution in trust and estate matters is addressed in RCW 11.96A, commonly referred to as actions under TEDRA.
Laws applicable to arbitration.
Private arbitration in Washington is addressed in the Uniform Arbitration Act at RCW 7.04A. Mandatory Arbitration in Washington is addressed in RCW 7.06 and Superior Court and Snohomish County Local Rules.