Mediation/Alternative Dispute Resolution (“ADR”)
A. Resolving Your Divorce without a Trial
Mediation is a process to assist parties in resolving disputes of any outstanding issues. It presents an excellent opportunity to bypass further time-consuming and expensive judicial intervention on these oftentimes emotional and frustrating issues.
What is Mediation? The whole point of Mediation is to settle your case in a way you find acceptable. It is as simple as that. You will meet with the mediator who displays fairness, knowledge of the law, and good judgment. The Mediator is trained to facilitate and manage settlement negotiations. A Mediator is “neutral,” and doesn’t favor one side over the other. The Mediator focuses attention on the real issues that divide you and your spouse and attempts to assist you both in reaching common ground.
What Mediation is not. Mediation is not a Trial or Hearing. A Mediator is not a judge, nor an Arbitrator. The Mediator does not make an order or ruling. A Mediator will not decide whether you are right or wrong (although the Mediator may tell you the strengths and weaknesses of your case). A Mediator will not give you legal advice (although the Mediator may discuss law and court procedures). You do not testify under oath. There is no court reporter present, and a Mediation session is not public. It is confidential.
May I bring evidence to present during the Mediation appointment? Since Mediation is confidential and geared toward problem-solving, there is no need to provide evidence or documentation. The Mediator will likely refuse to consider any evidence, should you bring any.
Who can attend the Mediation appointment? Typically, only the parties, their Attorneys, and the Mediator are included in the Mediation Session.
Mediation is confidential. All oral and written communications during Mediation are confidential and must not be disclosed without the consent of the party making the communication. What you say during the Mediation cannot be used against you, or your spouse in the case. If Mediation is to succeed, both sides must understand that they can speak freely and frankly to the Mediator and to each other. Whether there is a written agreement or not, these rules always apply to Mediation. Similarly, neither party can ask the Mediator to be a witness at Trial. Even if subpoenaed, the Mediator will not testify for or against you. It is also important to understand that everything you tell the Mediator should not be shared with your spouse, unless you give them permission to do so. The process is designed to allow you to speak freely.
Joint session. The process usually takes place in person at the Mediator’s office. The parties generally meet together, and the Mediator will provide an overview of the process. Then, the parties and their Attorneys will move to separate rooms. Ahead of the Mediation, your Attorney provides the Mediator with a Confidential Mediation Memorandum outlining all of your proposed settlement positions. The Mediator will have already reviewed our Mediation memos with your positions outlined. Typically, the Mediator starts with the Petitioner. The Mediator will meet with the Petitioner, confirm their settlement positions, and likely start outlining a first offer to take to the Respondent spouse. Please understand that there can be a lot of downtime waiting for the Mediator to discuss settlement with the other side. Do not read anything into the amount of time the Mediator spends with you or your spouse. Once the Mediator is done meeting with the other spouse, they likely return with a counteroffer. You can agree, disagree, and/or make a counteroffer. This process continues until an agreement is reached. The Mediator is there to facilitate discussion and provide input on the likelihood of prevailing if the issue were to go to Trial.
During this process, you have the opportunity to speak freely with the Mediator. This is your time to tell the Mediator whatever you believe is relevant to your case. Your Attorney is there to answer any legal questions or provide legal advice on your positions. However, you are in the driver’s seat, and the decisions are ultimately up to you.
At any time during the process, if you need to discuss something with your Attorney that you don’t want the Mediator to hear or you just need to take a break and think, you can certainly do so. There is much downtime during these negotiations when the Mediator is meeting with the other side. Therefore, many times you can get any questions answered during that time. But, situations arise where you may need a break during your time with the Mediator or to discuss an issue with your Attorney privately before agreeing.
One of the most important duties of a Mediator is to force each side to reexamine its position. Frequently a party will enter Mediation with a feeling of great certainty that it will succeed on a certain claim. A skilled Mediator impresses each side that absolute certainty is never possible in a lawsuit and that there are great benefits to settlement. Unfortunately, your spouse may start with a rigid viewpoint, and despite the Mediator’s best efforts, never change.
If a Mediator suggests a range of possible solutions and you reject them as unworkable, do not hold that against the Mediator. Remember, one of the functions of the Mediator is to dislodge you and your spouse from your entrenched positions and encourage you both to be flexible and realistic about settling your differences. In other words, a skilled Mediator acts as “devil’s advocate.” Mediation is a superb “reality check” for parties to help them reach acceptable resolution terms.
Settlement agreement. As the time passes, the Mediator spends less time learning the facts and more time proposing and exchanging settlement terms. In a successful Mediation session, the differences between you and your spouse gradually narrow until, eventually, a settlement is reached. Sometimes, an outline of the settlement terms is typed or handwritten, and the parties sign that document. This agreement is enforceable. It may be retyped into more formal or legalistic terms by the Attorneys, but you should know that the Settlement Agreement you and your spouse sign at the Mediation session is binding and final. It is important that you do not agree to anything you cannot live with, because once you sign a settlement documents, it cannot be undone.
What happens if Mediation fails? If Mediation fails, we may continue negotiating with your spouse until a Trial is scheduled. Please do not feel compelled to reach an agreement at Mediation.
Benefits of Mediation. First, the Mediator is an impartial, neutral, trained professional who views your dispute objectively and can assist you and your spouse in discussing and reaching a creative solution. Second, Mediation is quick—usually, you will know whether your case will be settled by the end of the day. Third, Mediation is a negotiation. No Judge publicly decides your fate. Fourth, Mediation saves money—lots of it. If properly timed, a successful Mediation session can save the two sides substantial Attorney fees, deposition costs, expert witness fees, and the like. Finally, Mediation can bring an end to litigation which oftentimes is destructive because it forces you to relive very unpleasant experiences—and you decide the terms of closure. Mediation is a process you control.
B. Parenting Conference if Children Involved
Either parent can request a Parenting Conference in a Divorce case. A Parenting Conference is conducted through the Court’s Conciliation Services, and is attended just by the parents, without their Attorneys.
The purpose of the Parenting Conference is to help the Court determine what is in the “best interests of the parties’ children.” The focus is on where the children will reside, how much time each parent will spend with the children, and how the important decisions, as well as day-to-day decisions regarding the children, will be made. In the conference, the Court Conciliator will identify the parties’ areas of agreement and disagreement over Child Custody and Visitation issues. The Conciliator will then make recommendations to the court that he or she believes are in the best interests of the child.
The process begins with a referral from the assigned Judge — the parties are ordered to appear at a Parenting Conference through Conciliation Services. The entire evaluation procedure, from the referral to the submission of a report to the Judge, may take two months or longer to complete.
To get a firm understanding of the circumstances, the Conciliator gathers information relevant to the child in the Family Law Case, including reports from law enforcement and Department of Child Safety. Each parent also completes and submits a detailed questionnaire to the Conciliator. Your Attorney we help you complete this questionnaire.
Through a joint session with both parents, and through individual sessions with each parent, the Court Conciliator interviews the parties, may interview the child depending on age, and observes the parents’ interaction with their child. (Generally, a five-year-old child is too young to be interviewed, but certainly may be observed by the Conciliator.) If a parent is fearful of the other party, then the Conciliator can make arrangements to avoid a joint session. The Conciliator may also interview non-parties to gather more information, such as neighbors, teachers, friends, and other family members.
If, during the conference, the parties come to an agreement on some or all of their Custody and parenting issues, and those agreements seem to the Conciliator to be in the best interests of the child, then the Conciliator may recommend the Agreement to the judge. Generally, the Conciliator will make detailed recommendations and indicate areas of concern in a written report to the Court.
C. Settlement Conference
A Settlement Conference is a form of “Alternative Dispute Resolution” that is scheduled by your assigned Judge. A Settlement Conference is similar to a private Mediation, with a few differences. First, the settlement conference is usually scheduled for three hours. Also, it is conducted by a Judge, Commissioner, or a Judge Pro Tempore. The assigned Settlement Conference Officer is never the same person as your Judge. This Settlement Conference Officer will provide input on the legal merits of each spouse’s positions to help facilitate settlement. As with Mediation, everything shared during a Settlement Conference is confidential and will not be shared with your assigned Judge. If you are able to reach Agreements, you can outline them “on the record” (recorded) by the Settlement Conference Officer, at which point, the Agreements become binding.
D. Binding Agreements
Binding Agreements in a Phoenix Divorce case are governed by Rule 69 of the Arizona Rules of Family Law Procedure. Under this rule, Agreements become binding when:
- The Agreement must be in writing and signed by the parties or their Attorneys.
- The Agreement can be read before a Judge, Commissioner, Judge Pro Tempore, or a court reporter.
- The Agreement must be recorded in the presence of a court-appointed Mediator or a court-appointed Settlement Conference Officer.
Please understand that just because you have entered into a Binding Agreement under this rule, it does not mean that these Agreements have become enforceable court orders. Any agreement reached under Rule 69 of the Arizona Rules of Family Law Procedure, must be subsequently submitted to the court for the Judge to accept the agreement terms as an enforceable Court Order. However, if the Agreement terms were read before your Judge on the record during the Hearing, they are automatically enforceable Court Orders.
Whether or not your Binding Agreements are enforceable Court Orders is important if your spouse is not following the terms of the Agreement. To enforce those terms, the Agreements must be Court Orders.
It is extremely difficult to prove that a Binding Agreement under Rule 69 is invalid. Rule 69 Agreements are presumed to be valid and binding. A person challenging the validity of the Agreement has the burden of proving the invalidity of the Agreement. However, the Judge still has the authority to reject the Agreement. He can reject the Agreement if he or she determines the Agreement is not in the “best interests of the children.” A Rule 69 Agreement may be considered invalid if any of the following are proven:
- Coercion or duress of a party during the signing of the Agreement.
- Failure of a party or their Attorney to sign the Agreement.
E. Divorce Decree and Property Settlement Agreement (PSA)/Martial Settlement Agreement (MSA)
The Divorce Decree can be the final ruling by your Judge in the Divorce Case. It can also be the Agreements between you and your spouse on all issues involved in your Divorce. In both instances, the Decree is the mechanism that finalizes your Divorce.
A Judge may not sign a Final Decree outlining the Agreements of the parties unless it resolves all of the issues in the Divorce Case.
Generally, attached to a Divorce Decree is the parties’ Parenting Plan if they have children, and the Property Settlement Agreement (PSA)/Martial Settlement Agreement (MSA), which outlines how their assets and debts are being divided. This Agreement is subject to the Judge’s approval. Judges favor settlements, so they rarely find a written Divorce Settlement Agreement to be unfair and unenforceable when both sides are urging the court to accept the Agreement.
Occasionally, however, one of the parties will object to a written Settlement Agreement after signing it. Sometimes one side will claim she was defrauded, that she was coerced into signing the Agreement or that she was under duress at the time she signed the Agreement. In such cases, the party challenging the validity of the Agreement has the burden to prove some defect in the Agreement.
After considering the challenge to the Agreement, the Judge may find the Agreement to be unenforceable, in which case the Divorce action will proceed to Trial as though the Agreement never existed. If the Judge finds the Agreement to be enforceable, however, the Judge still must review the Agreement for fairness. If the Judge finds the Agreement to be fair, reasonable and in the children’s best interests, the Divorce Case is then resolved consistent with the terms set forth in the written Settlement Agreement.
In many cases, the Settlement terms regarding division of property are outlined in the Divorce Decree itself. Divorce Decrees are public records, however, and anyone can go to the courthouse and look up the terms of a Divorce Decree. A significant advantage of using a separate PSA is that the terms of the parties’ property Settlement can be kept completely confidential. Although the judge must approve the PSA and find its terms to be “not unfair”, the PSA does not need to be filed with the Court.