Mediation is a form of dispute resolution that aims to assist two or more disputants in reaching an agreement. At a trial, the parties present evidence, and a decision is imposed on the parties by the judge. In mediation, the parties themselves determine if there is an agreement, and the contents of the agreement. Many parents chose mediation with a private mediator. If, for financial or other reasons, you do not want to hire a private mediator, Multnomah, Clakamas, and Washington county make mediation available to parties involved in family law disputes.  Courts want people to mediate because it weeds out cases that can be resolved without the help of a judge. Clients want mediation because it gives them control over the outcome, is confidential, reduces conflict between the parties, and is generally less expensive than litigation.  Good lawyers like mediation because it provides an efficient and lower cost way to help clients resolve their disputes.          

ORS 107.755 requires that each judicial district provide a mediation orientation session for all parties in cases where custody, parenting time, or visitation is in dispute, and in any other domestic relations case where mediation has been ordered. The orientation session should make parties aware of (1) what mediation is; (2) mediation options available to them; and (3) the advantages and disadvantages of each method of dispute resolution. With limited exceptions, mediation is mandatory prior to a judge hearing  a case.  Mediation is not appropriate for restraining order or cases involving domestic violence, and court mediators must, per statute, be trained in recognizing domestic violence, allow parties to opt out, and take steps to avoid intimidation before and during mediation. County mediation is held in private, and all persons other than the mediator and staff, parties, counsel and children of the parties shall be excluded.  All communications, verbal or written, made in mediation proceedings shall be confidential, and not subject to examination in court.

Multnomah County:  The court’s rules about mediation are located in SLR 8.046.  Multnomah county is a mandatory mediation county for family law cases.  If you don ‘t mediate or get permission to get out of mediation, you won’t get time with a judge. No temporary hearing or trial regarding custody or parenting time will be set unless an Order for mediation has been obtained, an Order Waiving Mediation has been entered, or the parties have attended mediation since the filing of the Petition.  Modification motions will not be heard without compliance with the mediation requirement. The Multnomah County Family Court Services website provides that mediation is available for custody and visitation issues.  The service is supported by filing fees and is free to the participants. For more information or to set an appointment call Family Court Services at 503.988.3189.

Washington County: Washington County has mandatory mediation for Any action filed in the court involving a controversy over custody or parenting time of minor children. If the parties agree, the mediator can address issues other than children, such as property and support.  If there is a disagreement concerning custody or parenting time at any stage of a domestic relations proceeding, the parties must mediate.  Parties must complete two sessions of Kids Turn, the mandatory parenting class prior to mediating. Parties may independently select a private mediator. Mediation is confidential, and free. The Washington County Conciliation Services website provides information on mediation services in Washington County. Mediation can be scheduled by court order, or by calling Conciliation Services at : (503) 846-3428.

Clackamas County: Clackamas county is a voluntary mediation county.  There is no SLR mandating mediation. Parents can access free mediation through the county, but are not required to do so in most cases unless specifically ordered to by a judge.  The Clackamas County Family Court Services website provides information about accessing mediation in Clackamas County.  Most types of family law filings qualify for one or two free mediation sessions. Mediation sessions beyond the two free sessions are charged at $80 per hour. Mediation can be scheduled by calling  Family Court Services at  503-655-8415 .

A marital settlement agreement is a contractual agreement entered into by a husband and wife prior to their divorce. The settlement reached can be much more detailed and individualized than a judge’s ruling and can include provisions that a judge would not legally be allowed to include. The parties can work with their attorneys to make sure that their individual needs are accounted for while providing a fair division of the parties’ assets and debts.

A marital settlement agreement can also be used by parties who want to have a trial separation, but be insured of how a divorce will proceed if they are unable to save their marriage. Clients will often want to file for a legal separation in order to preserve their rights while still being able to stay on the other spouse’s health insurance. Rather than going thorough that process, they can sign a marital settlement agreement and wait to file for divorce until the health insurance issue can be rectified.

A court does not have to approve the agreement reached by the parties, but will almost always do so provided that it is a fair agreement and both parties knew what they were agreeing to. In order for the parties to be as secure as possible that the agreement will be approved by the court they must disclose truthfully all of their financial information to the other spouse, must actually abide by the terms of the agreement during the time between signing the agreement and filing for divorce, and they must actually get divorced in a reasonable period of time. If, for instance, the parties wait many years to divorce, a court would be less likely to approve the agreement.

With the passage of the new domestic partnership legislation in Oregon, marital settlement agreements may be able to be used by domestic partners to formalize issues prior to dissolving their domestic partnership.

In conclusion, martial settlement agreements provide a great way for clients to divorce in an amicable and mutually beneficial manner.

Having a trial is a way, but not the only way to resolve your case. There are many tools available for resolving your case other than a trial. Good family law lawyers are problem solvers, and the good ones recommend that their clients try to resolve their disputes outside the courtroom. Many jurisdictions have mandatory mediation (without lawyers) for parenting time and custody issues. Many good lawyers recommend their clients use private (for a fee) attorney guided mediation for property and custody and parenting time issues. Many participate in judicial settlement conferences where a judge attempts to guide the parties towards a cooperative resolution. If successful, the benefit of these tools to the client is usually lower cost, less conflict, and an agreement they chose, rather than having a judge tell them what the result is.

Some specially trained lawyers are using a new process called “Collaborative Divorce” designed to keep clients out of the courthouse from the beginning. Collaborative Divorce is a non-litigious party based settlement process in which a husband and wife or domestic partners work together to dissolve their relationship. The process can result in less cost, stress and judicial involvement than a litigated divorce or domestic partnership dissolution. The main idea is for the parties to work together to end their relationship in a manner which allows for each party to be self-sustaining financially and that serves the best interest of their child.

In a Collaborative Divorce case, the parties use a team of professionals to work on specific areas of their case. For example, if a child is involved, then the parties would have a child specialist on their team. In all cases, a financial specialist trained specifically in divorce finance and a mental health practitioner will be used. One benefit of the collaborative divorce process is that it can produce much more creative methods of property division and spousal/child support than a judge in a litigated case would order.

At the beginning of the case, the parties sign a collaborative practice agreement or participation agreement, which outlines the essential principles of the collaborative process. The agreement limits the parties’ attorney-client confidentiality and sets forth the rule that if the collaborative process is unsuccessful, then all of the professionals involved in the case, including both parties’ lawyers, will no longer work on the case. In addition, any materials or information produced in the process will not be admissible in court.

This process is very popular in Canada, Australia, and in some states in the US. It has not taken off yet in Oregon at a substantial level. There are, however, a number of collaboratively trained lawyers and team professionals in the Portland area. This is a growing field, and something to seriously consider if both you and your spouse wish to avoid the expense, stress, and frustration of traditional, adversarial litigation. Our office maintains a list of family law lawyers trained in the collaborative process.