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DISPUTE RESOLUTION OPTIONS FOR YOUR
PARENTING PLAN
Introduction--Three
Methods. All parents going
through a dissolution learn that the
parenting plan required by the Washington
State Parenting Act must specify a
dispute resolution method as a part of
the plan. The dispute resolution section
always appears in Part III of the plan,
as mandated by the parenting plan form.
Note that this section applies only to
disputes under the parenting plan, and
not disputes about matters such as child
support or tax exemption allocation.
The
three standard options for dispute
resolution are court action, mediation
and arbitration. But what are the
differences? And what are the pros and
cons of selecting one of these three
options?
Court
Action. Parents always have the
right to say that the only dispute
resolution mechanism that they want is
the use of the court system to adjudicate
their differences. One typical reason for
this is that one party cannot afford the
cost of alternative dispute resolution.
In theory, a party representing him or
herself may obtain access to the courts
free by filing a motion on the Family Law
Motions Calendar (or nearly free,
allowing for the costs of service and
copying). An arbitrator or mediator, in
contrast, frequently charges for his or
her services at rates of upwards of $100
per hour, with the costs to be divided
between the parties in some fashion.
As a
practical matter, however, in the event
of a serious dispute, a party may be
reluctant to take court action without
counsel. Also, legal fees borne by a
party in post-decree matters can mount
much more rapidly than the shared cost of
an arbitrator or mediator. So a parenting
plan which provides for court action only
does, in the event of a serious dispute,
leave a party with the alternatives of
putting up with a bad situation, plunging
into court alone, or spending money on
attorney's fees.
Mediation.
A recent authoritative study of
the implementation of parenting plan
legislation in Washington state found
that almost three-quarters of all the
plans reviewed by the researcher
designated mediation as the method for
dispute resolution under the parenting
plan. See http://www.courts.wa.gov/newsinfo/newsinfo_reports/index.cfm?fa=newsinfo_reports.display&folder=parent&file=chap3 Not everyone
who selects mediation as an option
understands what mediation is, however.
In
mediation, a neutral third party assists
the parents in reaching a voluntary and
informed settlement of their parenting
differences. Ideally, the parties
identify the areas of agreement and
disagreement, express his or her own
needs, and consider options that meet
those needs. The mediator facilitates a
fair process and may have no
ability, depending on his or her
knowledge of family law, to evaluate
whether a fair result has been
reached.
Here
are some issues that should be considered
by parties considering mediation:
- Solutions
that parents are able to derive
jointly and cooperatively are
frequently more satisfying than
decisions imposed by an outsider
such as a judge.
- This
method of dispute resolution is
widely considered to be totally
inappropriate for survivors of
domestic violence. Many observers
also believe that is not the best
method when there is a
significant power imbalance
between the parents, even absent
acknowledged domestic violence.
- Many
parents who have used mediation
believe that it is expensive,
time-consuming, and frequently
unsuccessful, especially in
complex cases.
- The
background, training, and
experience of mediators can vary
widely.
It
is also interesting to note that
first parenting plans examined in the
study cited above were more likely to
specify a non-court ordered dispute
resolution mechanism than were
subsequent plans. The researcher
thought that this was related to some
parents' frustration with mediation
as a tool. http://www.courts.wa.gov/newsinfo/newsinfo_reports/index.cfm?fa=newsinfo_reports.display&folder=parent&file=chap3
Arbitration.
Only about one percent of
parenting plans designate arbitration as
the dispute resolution mechanism, and
this method is not widely understood.
Like mediation, arbitration uses a
neutral third party outside the court
system. Unlike mediation, however, the
arbitrator makes the decision for the
parties rather than simply facilitating
the parties' process of decision.
Here
are some issues to be considered by
parties considering arbitration:
- The
parties still have the right to
go to court in the face of an
unsatisfactory decision unless
they have agreed that the
arbitration is to be binding.
However, how an experienced
arbitrator views a party's
position is frequently a good
indication of how the court
commissioner or judge will view
that party's position, so the
review to review of the decision
is not always exercised.
- Arbitration
can be considerably faster than
mediation in resolving a dispute
- Because
of its speed, using arbitration
can be less costly than extended
mediation or a trip into court
with an attorney.
- Arbitration
can be very useful in deciding a
limited point of contention
between parties in general
agreement.
It is
also possible to mediate to a general
agreement, and then agree to arbitrate
the remaining points.
Conclusion.
When formulating your parenting
plan, do not overlook the selection of
the method you will use in the future to
resolve disputes with your children's
other parent. It is worth some time to
make sure you understand the differences
between the methods in order to decide
which is the best for your own situation.
Our firm consist of three
lawyers, Peter W. Mogren, Ronald E.
Glessner, and Ruth A. Roti. Our
emphasis is in family law, wills and
probate, and personal injury.
Please click on the topics above for
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The free information contained
in these pages is not
intended to be legal advice, and does not
create an attorney-client relationship.
You should always consult with an
attorney before taking any action. Feel
free to call us at 425-255-4542.
 
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