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. 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.
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 expenses than a full trial.
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Settlement conferences usually takes place a few months before trial but after all discovery has been complete. 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 experiences 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.
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.
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.
What Is a Settlement Conference?
For more information about your case in Oregon or Washington, please call to arrange a consultation. View Larger Image. The case must be initiated by a Summons and Petition for Dissolution of Marriage. The Summons is the document that gives your spouse notice that he or she will have 30 days in which to file and serve responsive pleadings, such as a Response or Counter Petition. The Petition sets forth the factual and legal basis for your claims.
The Petition, once approved by you, is then filed in the Circuit Court clerk's office in the county where the action will be litigated. A filing fee is required. Upon filing, a docket number is assigned to your case and must be written on all pleadings and motions filed with the court thereafter. Your spouse must then be personally served with the Summons and Petition.
Service for our office is typically done by a private process server. In some cases, your spouse may sign a document called an Acknowledgement and Acceptance of Service, which is a substitute for personal service. Once your spouse is served, he or she will have 30 days in which to file a Response or Counter Petition. The Response or Counter Petition sets forth the facts and law upon which your spouse will rely in defending against our lawsuit. If your spouse's lawyer has already prepared the Petition, we will prepare a Response or Counter Petition.
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After you have approved the Response or Counter Petition, we will file it with the court. A filing fee, or "first appearance" fee is required. Either party may request a hearing to modify or revoke the restraining order. Examples are as follows:. There are other motions we may file on your behalf, such as a motion for temporary relief and a motion to compel production of documents. Those and other motions will be discussed in more detail later in this summary. In many instances, it is practically impossible to settle or litigate a dissolution case without the assistance of experts.
If your case warrants the engagement of an expert, we will generally advise you to do so. When financial issues are at stake, we generally advise that you hire a financial expert with experience in the dissolution setting. Experts are generally used in dissolution cases to value businesses and professional practices, to ascertain and determine incomes and cash flows, to trace property and investments, to give tax advice, and to otherwise assist with the financial aspects of the case.
Where there is a dispute as to property values, we generally advise that real estate appraisers and personal property appraisers be hired to appraise the real estate and personal property that will be at issue in the case. Again, we prefer to hire appraisers who have experience in court and whose opinion is respected by other attorneys and by judges.
The case law governing family law matters requires that competent evidence be presented to the court. In the absence of adequate proof from you, the judge is at liberty to accept the values put forth by your adversary, which most likely will not be to your benefit. When serious issues of child custody or visitation are raised, we generally recommend that an experienced clinical psychologist be hired to evaluate the family and to assist in making the child custody and visitation decisions. We also recommend using clinical psychologists to work through custody and visitation problems, which may defuse the contested nature of those issues.
The court may also order such an evaluation.
Sometimes it is necessary at the beginning of the case to ask the court to make orders for temporary relief during the pendency of the case. Such relief may include, among other things, temporary spousal or child support, temporary exclusive use of the family home, temporary custody of minor children, payment of monthly bills, and payment of attorney fees, and "suit money, " to assist you in retaining experts to help with your case. In most counties, a hearing for temporary relief may be ordered on the motion of a party.
If at all possible, it is generally best to attempt to resolve these temporary issues without a hearing.
Advantages Of Using Mediation In Your Divorce Case
Under Oregon law, if you have minor children, both parents are required to attend a parenting class before the divorce can be finalized. Sometimes, it is helpful for both parents to attend the class at the same time, as the class provides good information about how to get through the divorce process with as little negative impact on the children as possible. Further, under Oregon law, if a party fails to disclose a significant asset that existed at the time of the divorce, the divorce case may be reopened.
Moreover, many discovery responses are admissible in evidence at hearings in your case. Therefore, the discovery process should be taken very seriously.
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Discovery is generally necessary whether the case is settled or litigated. In order to properly settle the case, we must have a general awareness of the facts involved in your case, particularly the financial facts. If the case is to be litigated, discovery is necessary in order to properly prepare and present the case at a final hearing. Dissolution cases are not necessarily won by who is right but, rather, are oftentimes won by the party who is better prepared.
Once the case is filed in the Circuit Court, there will typically be motions as have been discussed above. Motions for contempt or motions to compel discovery are also typical. Contempt matters generally involve enforcement of prior court-approved agreements or orders, such as an order for payment of temporary child or spousal support.
Circuit Court judgments and orders should be treated very seriously. The penalties involved in failure to comply with these documents can be substantial and may even include jail time.
What Happens at a Divorce Settlement Conference?
As previously noted, motions to compel discovery are brought when information has been requested but not provided, or when a party refuses to cooperate with attempts to gain information. In Oregon, the practice of Family Law is governed by a large body of case law decided by our the Oregon Court of Appeals and the Oregon Supreme Court , statutes created by our legislature , Court Rules promulgated by our Supreme Court , and administrative rules.
The law governing domestic relations is an ever-changing body of law. We attempt to keep ourselves apprised of these changes as they are made. We subscribe to many periodicals and services to enable us to do so. Typically, dissolution cases may take six to 12 months to complete, with some exceptions. Oregon law requires that once a case is filed with the court, it will remain on the active trial roster for nine months. After that time, it is dismissed, but may sometimes be reinstated for good cause.
The time it takes to complete your case will depend on several factors, many of which are not within our control or your control. It will depend in large part upon the issues that you and your spouse chose to contest.
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