Many people going through divorce wish they could “just mediate” their case. The good news is that several counties in Washington state, including King and Snohomish County, require that spouses engage in “alternative dispute resolution” (“ADR”) at least 30 days prior to the trial date.

ADR is the formal process of resolving disputes without going to court. ADR can take different forms, including mediation, arbitration and attorney-led settlement conferences. Mediation is a process conducted by a neutral third-party mediator who facilitates the settlement discussions. Although mediators cannot force a settlement or make unilateral binding decisions, if the parties come to an agreement at mediation that is memorialized in writing and signed by them, their agreement is binding.

Arbitration is a formal method of resolving disputes using a third party who makes a binding decision when agreement cannot be reached. If you want to find out more about arbitrating issues your divorce, you can click here.

Finally, a settlement conference is a formal process which is usually facilitated by a judge. In this circumstance, however, the judge’s sole role is to help facilitate a potential settlement. Although the judge may offer an opinion about an issue in the case and how he might rule on the issue if he were presiding over the case, the judge cannot make any binding decisions.

Prior to engaging in ADR, it is important that you understand in which process you are participating. In this article, we are focusing on mediation and the typical questions that come up around this process during a divorce.

Will I be in the same room with my spouse at mediation?

No, you will not be in the same room as your spouse in a typical divorce mediation where both parties are represented by counsel. If you are represented by an attorney, you will be in the same room with your attorney; your spouse will be in a different room with their attorney. The mediator will shuttle back and forth between rooms, bringing information and proposals for discussion between the rooms. Most mediations are now conducted virtually using a video conferencing tool, but the principle remains—this is a private, confidential process, and you will not directly interact with your spouse at the mediation.

How long will the mediation last?

Divorce mediations are usually scheduled for eight hours (9:00-5:00); however, you should expect that the mediation may go much longer. It is common for mediation to last into the evening, as both sides have significant incentive to persevere until all issues incident to the divorce are resolved. And the process is important—both participants need time to work through the issues, weigh decisions and come to an agreement that is satisfactory and acceptable. This takes time. In some circumstances, a settlement may not be reached, or not all issues are resolved. The parties may agree to schedule a second mediation to continue settlement discussions, if appropriate.

Should I have an attorney at mediation?

It is prudent to work with an attorney at mediation. While mediators can offer their neutral perspective and opinion on the issues in the case based upon their experience and knowledge of family law, they cannot give legal advice. Mediation requires making decisions all of which have legal consequences and an impact on your and financial future and/or children. It is best that you have an attorney present with you at mediation to represent your interests, provide you with legal advice, and work with you through the issues before settling because the terms are binding if you and your spouse reach a final agreement.