Family Law: Dispute Resolution Options in Parenting Plans
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/index.cfm?fa=newsinfo.displayContent&theFile=content/parentingAct/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/index.cfm?fa=newsinfo.displayContent&theFile=content/parentingAct/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.