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Facilitative Mediation

Lancaster Law Office helps people in conflict meet face-to-face to negotiate disputed issues in a respectful and informed manner.  Many divorcing couples or family members or neighbors in conflict find facilitative mediation attractive because it is frequently the least expensive way to complete a divorce or probate or dispute with high quality final paperwork and expert guidance.  Mediation, in divorce or other civil matters, works well where power is relatively well-balanced between the disputants, where disputants are able to negotiate with mutual respect, and each has confidence in his or her own decision-making ability.  When he acts as mediator, Brad represents no disputant as an attorney, but acts, rather, as an intermediary and a drafter-of-legal-documents only.

In face-to-face mediation, Brad helps disputing parties resolve their marital or other civil disputes constructively using interest-based negotiation strategies.  Brad uses a framework developed in Difficult Conversations, by Stone, Patton, and Heen, which he has epitomized for your convenience.  Brad helps the disputants create a joint narrative explaining their dispute, so the "fight it out in court" story can be abandoned.  Then the disputants systematically work through their concerns, for example in divorce, their parenting and financial separation issues.  If the disputants need legal counsel, they may employ collaborative lawyers to advise them.  Marital partners may employ a child specialist to help them protect their children.  Marital partners may employ a neutral financial expert to help them understand implications of the financial decisions they are making.  Family disputants, for example in probating a deceased parent's estate, may add a dispute coach to the negotiation to help them process their emotional issues.  If marital partners' emotions or lack of communication skills hinder the mediated process, the partners may employ a divorce coach

In considering mediation, many issues overlap with those of collaboration.  Please look over the several entries at Considering Collaboration when thinking about mediation.  Though some of these materials are aimed at divorcing partners, the collaborative structure is applicable to non-divorce disputes as well. 

Uniform Mediation Act

Washington has adopted the Uniform Mediation Act.  RCW 7.07.
 
A mediator, according to the UMA, facilitates communication and negotiation between parties in the effort to reach a voluntary agreement concerning their dispute(s).  RCW 7.07.010.  The UMA applies to court-ordered mediations, negotiations in which the parties intend that their conversations will be privileged against disclosure, and mediations in which the mediator holds himself out as a mediator.  RCW 7.07.020.  The parties may agree in writing that all or a portion of the mediation communications will not be privileged.  RCW 7.07.020.
 
Mediation communications are confidential.  RCW 7.07.070.  In court proceedings, 1) either party may refuse to disclose mediation communications and prevent the other from party from doing so as well, 2) the mediator may refuse to disclose mediation communications and may prevent any other person from disclosing medication communication of the mediator, and 3) a non-party participant in mediation may refuse to disclose their mediation communications, and may prevent any other person from disclosing their mediation communications.  Evidence otherwise discoverable in court proceedings is not made inadmissible as evidence merely by being used in mediation.  RCW 7.07.030.  No privilege exists for mediation communications that: a) evidence the written agreement of the parties signed by the parties, b) is made during a session required by law to be open to the public, c) threatens or states a plan to inflict bodily injury or commit a crime of violence, d) is used to plan a crime, to attempt or commit a crime, or to conceal an ongoing crime, e) pertains to complaints of misconduct or malpractice of the mediator, f) pertains to complaints of misconduct or malpractice of others involved in the mediation, or g) bears upon the abuse, neglect, abandonment, or exploitation of a child or adult in a proceeding in which a child or adult protective service is a party.  There is also no privilege if a judge privately reviews the mediation communication and determines that the public need for evidence substantially outweighs the need for confidentiality where the mediation communication is sought in relation to a criminal felony proceeding, or a proceeding related to a contract arising from the mediation.  A mediator may not be compelled to provide evidence related to misconduct of others involved in a mediation or related to contracts arising from the mediation.  Mediation communications are not subject to disclosure of public documents provisions of RCW 42.56.  RCW 7.07.050. 

Mediators may not report to courts or administrative agencies regarding the subject matter of the mediation.  Mediators may disclose whether the mediation has occurred or terminated, whether settlement was reached, efforts to schedule a court-ordered mediation.  RCW 7.07.060. 

If a mediator has a conflict of interest with regard to the subject matter of the mediation, she shall disclose to the parties any matter that would lead a reasonable individual to question the impartiality of the mediator.  Mediators must inform mediation parties of their qualifications to mediate on their behalf.  But mediators are not required to have any special qualifications by background or profession.  RCW 7.07.080.

A mediation party’s attorney or other individual selected by the party may attend mediation and participate in mediation, unless the matter is a small claims court matter.  RCW 7.07.090.

Brad Lancaster works as a Seattle divorce attorney, and Seattle probate attorney, and Seattle elder law attorney, serving King County and Snohomish County, including Seattle, Shoreline, Lake Forest Park, Edmonds, Woodway, Lynnwood, Mountlake Terrace, Alderwood, Brier, Kenmore, Woodinville, Mukilteo, Mill Creek, and Everett.  Brad provides collaborative solutions to human conflict.

Lancaster Law Office
17503 Tenth Avenue NE
Shoreline, Washington 98155
Phone: 206-367-3122

Facsimile: (206) 367-3109
Toll-Free: 1-888-367-3122
info@lancasterlawoffice.com

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