Legal Q: Admissibility of an offer of settlement in determination of fee award

Disclaimer: I already have an attorney.

X makes a settlement offer of $10,000 to Y in a family law matter in Washington State. Y refuses and pursues binding arbitration. Y ultimately “prevails” in arbitration and is awarded $4,000. On this basis, the arbitrator wishes to award attorney’s fees to Y. X’s attorney points to the settlement offer of $10,000 to demonstrate that Y did not prevail and as such should not be awarded attorney’s fees.

Can a settlement offer be introduced in this manner?

Doesn’t the fact that it’s arbitration rather than a proper court screw up any semblance of case law and precedents? I always hear horror stories about arbitration (could be 'cos the good stuff isn’t news), and as such, I’d really like to see an answer to the OP and maybe address what I just brought up.

How would this situation even arise? The arbitrator would be presumably trying to mediate a compromise between X’s $10,000 offer and Y’s, say, $50,000 demand. How often do arbitrators go outside those original parameters?

A lot of this depends on the rules of arbitration in your local jurisdiction. This problem can realistically present itself in business situations. However, even local rules of arbitration can be modified by a preexisting agreement between the parties. Since the OP’s situation is in Family Law, I cannot comment further.

Arbitration isn’t the same as mediation. An arbitrator is basically functioning like a judge, just outside the court system. The arbitrator is free to award damages that are outside the range the parties claim.

You would need to check the rules of procedure and evidence of the State of Washington.

In many courts, there is a procedure whereby one party can make an “offer of judgment” to the other as a means of cutting off their attorneys fees. That may be what happened here.

Next, you would need to check the Washington rules of evidence, which will set forth the circumstances under which settlement offers are and aren’t admissible.

As a practical matter, it may be impossible to stop the arbitrator from considering the settlement offer in setting a fee award. Even if it’s totally inadmissible, it’s human nature to be influenced by that sort of thing. As they say, you can’t unring a bell.

But why not just ask your attorney?