Portland Family Lawyer: Arbitration, Mediation, Or Settlement Conference

ShellyGraham | August 11, 2017| Article & News


Every family law case is truly unique and requires a specifically tailored plan of action when deciding how to proceed forward with the matter. Not every case is proper for a full trial in front of a judge with expert witnesses. Rather, the parties often agree to most provisions including property division, spousal support, child custody, parenting time, and debt division and only need assistance resolving one or two items. In these cases, it is important to consider an alternative dispute resolution process such as mediation, arbitration, or a settlement conference with a judge.
Many counties in Oregon currently require some form of mandatory alternative dispute resolution for all family law or dissolution of marriage cases before the court will set a trial date. However, this is not the current rule in all counties. Currently, Multnomah County is the only court requiring an attempt at a settlement through some form of alternative dispute resolution on all matters before a trial may occur. Otherwise, most circuit courts only require mandatory mediation in cases that involve custody and parenting time issues for minor children.
Oregon requires mandatory arbitration for all dissolution of marriage, unregistered domestic partnership or registered domestic partnerships that come before the court that do not include issues of custody, parenting time, or spousal support. If the issues in the case dictate that mandatory arbitration should occur, only after the respondent files their response in the matter will the court automatically transfer the case to arbitration. Once that happens, the case follows a course that is similar to a trial but that happens in a less formal setting. Arbitration is not binding and can be appealed to the circuit court. If appealed, the court will then set a full trial in front of a judge and the litigants will get a new full opportunity to present testimony and evidence. There are very specific procedures when appealing the result after arbitration and it is important to speak with an attorney at all stages of the arbitration process even if you still plan on representing yourself. For example, there are different rules about paying the other side’s attorney fees and costs for a trial held after an arbitration ruling than during a traditionally litigated case.
Unlike arbitration, the result of mediation is not necessarily binding. Instead, mediation leaves the parties in control of their settlement decision. The mediator is a neutral third party who is trained in solving problems and helping each party reach a mutually agreeable resolution. The mediator facilitates a settlement discussion between the parties. Often, the parties are not in the same room and the mediator shuttles back and forth between the parties posing settlement offers, asking questions or proposing various options to the parties. Mediation can take a few hours or can take multiple days. Parties can mediate with or without lawyers and all settlement communication during the mediation process is confidential so that parties are free to make settlement offers without concern those will later be used against them in a trial. Mediation is a favored resolution method because the parties truly do control their destiny and are the ones that ultimately make the final decision. However, mediators are not on either party’s side and their goal is to resolve the case. If one party is not willing to be transparent with financial discovery or if there are domestic violence, mental health, or substance abuse issues at play, the mediator will be challenged to assist the parties in a successful outcome.
A settlement conference is a meeting with the parties, the attorneys, and a judge in which the parties attempt to work out an agreement instead of going to trial. Most often, this type of conference occurs with a judge in the county where the case was filed, but with a judicial officer who is not the assigned trial judge in the case. The process is similar to mediation and far less expensive than a full trial. Settlement conferences usually take place a few months before trial but after all discovery has been completed. While similar to mediation, there are some important differences in a settlement conference. For example, a mediator is a third party that will not ultimately be a decision-maker in the case and most mediators are not judges. While a mediator can be a retired judge, most mediators have trained specifically to mediate disputes whereas judges have experience deciding cases. Many litigants find it helpful to speak to a sitting judge to get her perspective on how she might address a particular aspect of the case. However, family law judges have broad discretion in their decision-making so you are only getting one judge’s “take” on a particular issue. Occasionally, the parties will agree that the trial judge may act as a settlement conference judge, but this usually only happens with the agreement of both parties. Each judge is slightly different in how they approach the conference and assist the parties to work through items involved. This includes, but not always, hinting at different approaches or offering an opinion about the likelihood of an outcome if it were to go to trial.
The divorce attorneys at McKean Smith, LLC understand the challenging issues in family law cases and believe in exploring all options for resolving a case. We work with our clients to set up a flexible and adaptable plan to assist with the specific needs of their particular case because there is no “one size fits all.” While not all cases require full attorney representation, we believe all parties need to understand the laws and procedures that govern the process and outcome so that you can make the best decisions for yourself and for your family. If you have any questions about a current dissolution action or are thinking about filing for a dissolution of marriage or custody case, call the attorneys at McKean Smith, LLC to set up a consultation today.
Annelisa has extensive experience in domestic relations cases and is highly esteemed in both Oregon and Washington for her litigation skills.
McKean Smith, LLC represents parties in both Oregon and Washington. For more information about your case in Oregon or Washington, please call to arrange a consultation.

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