Divorce Mediation in Scottsdale Arizona
We strive to provide answers to all of your questions regarding divorce mediation. We encourage you to view our Arizona Divorce Frequently Asked Questions page, as well as our Family Law Blog, to obtain more information about all aspects of family law.
Divorce Mediation in Arizona
In the modern world, divorce is no longer abnormal. In fact, many might say that it is becoming the norm. As the number of divorces escalates, the experience of those who deal with it on a regular basis also evolves. Laws change. “New” solutions become standard and additional solutions are designed to address problems that become apparent as more and more go through the divorce process.
One problem that only becomes more apparent is that divorce can become extremely contentious and that the more litigation involved, the more contentious the divorce process tends to become. Many who want to avoid this problem turn to divorce mediation.
Divorce mediation in Arizona has benefits and drawbacks. To discover if it is the best solution for you, consider both sides of the coin very carefully.
Divorce Mediation in Arizona | Mediation vs. Divorce Court
Time: Mediation allows you to determine the schedule and the issues being addressed at designated times. Proceeding with a divorce through court can be lengthy and time consuming.
Control: Mediation means you are directly involved in designing the solutions and coming to the decisions you will be required to live with. You can even try out ideas and solutions prior to signing the final divorce decree. In a divorce court, you must adhere to the ruling of the judge and outcomes can be unpredictable.
Deliberation Time: Mediation allows you to dictate how much time is spent on each issue. In a divorce court, judges need to adhere to a strict schedule and often end up with a short amount of time to consider the details of your case. In some instances, less than 5 minutes. You may only get a minute or two to testify.
Costs of Divorce: Frequent scheduling conflicts between the Divorce Court and litigants are just one of the many ways in which the costs of divorce can escalate. Mediation allows you to have more control over the cost and typically ends up totaling about 1/10 to 1/3 the cost associated with the typical divorce case that goes through the Court.
Confidentiality: Mediation is confidential while Court proceedings are a matter of public record. Depending upon your situation, this can be a major concern. The Arizona Court of Appeals in the Grubaugh vs. Hon. Blomo case confirmed the confidentiality of statements made in mediation and, further, stated the confidentiality of statements made in mediation may only be waived with the consent of both parties; meaning one party may not breach the confidentiality without the consent of the other party.
If you need to discuss the benefits and drawbacks of Arizona divorce mediation or Arizona Divorce Court in further detail, please get in touch with us at Hildebrand Law as soon as possible.
Divorce Mediation Tips
Now that we discussed the benefits of divorce mediation, we want to provide you with some tips on how you can increase the likelihood your mediation will be successful.
First, you need to find a good divorce mediator. A good mediator is a master listener. They give all their attention and focus to the person speaking. You will probably see them leaning into the speaker, making eye contact, making sure it is clear their attention is on you and only you when you are speaking. There are no distractions and, if there are, they are not acknowledged by a master listener – their focus is too focused on you and what is important to you.
A good mediator will respond with insightful questions and clarifications as necessary in order to ensure he or she understand what you are conveying to him or her. A good mediator will genuinely care about your greatest concerns. A good mediator will make validate your concerns and mitigate any positions you may be taking that are not reasonable or unlikely to be granted by a judge.
A good divorce mediator must also bring their extensive divorce and family law expertise to the table to provide solutions to roadblocks that occur during the mediation process.
The Arizona Divorce Mediation Process
Mediation is a process designed to bring parties together to help resolve disagreements regarding child custody, now known as legal decision-making, parenting time, child support, spousal maintenance (i.e., alimony), division of property and debts and other financial issues when going through a divorce, legal separation, paternity action, or any post-decree matter.
The mediator only has the authority to persuade the parties to reach a mutually agreeable settlement of the issues in their case. The mediator does not have the authority to force the parties into an agreement, nor does he or she have the authority to make rulings on the issues.
The process typically begins with both parties meeting with a neutral mediator to identify the issues that need to be resolved; although the parties may agree to meet separately with the mediator, if they prefer.
The mediator is neutral and does not represent either party but, instead, facilitates settlement discussions between the parties and provides practical solutions to resolve disputes. Both parties are provided an opportunity to discuss and explore their proposals to resolve the issues.
A qualified mediator with extensive experience in divorce and related family law cases is equipped to provide much needed guidance in assisting two parties in reaching fair and equitable agreements in all family law related matters.
Many people who use a qualified and experienced mediator settle all of their issues, which significantly reduces the legal fees they would have incurred if they litigated their disagreements.
As a general rule, statements made by the parties are protected from use at trial by the Arizona Rules of Evidence. That rule of exclusion for statements made in mediation is intended to allow the parties to openly discuss the issues in mediation in hopes of opening communication to resolve their issues.
If you reach an agreement during mediation, that agreement will only be binding between the parties if the agreement is reduced to a written settlement agreement and signed by both parties. Such written and signed agreements are presumed to be binding on the parties, pursuant to Rule 69 of the Arizona Rules of Family Law Procedure.
However, the agreement may subsequently be challenged by either party, pursuant to Arizona Revised Statute Section 25-317, on several grounds, such as a party signed it under duress or coercion, was not competent to sign the document due to some disability, argue the agreement is not fair and equitable or in the best interests of the parties’ children.
Lastly, the court may reject the agreement regarding child custody i.e. legal decision-making, parenting time, or child support if the judge independently determines provisions regarding those issues are not in the best interests of the children; although that rarely occurs.
Court Approved Divorce Mediation in Arizona
Alternative Dispute Resolution (ADR) is an umbrella term for a range of settlement methods, both private and through the Court, designed to help parties resolve their conflicts. Court connected programs in Maricopa County include a Family Court Settlement Conference between the parties and their attorneys (if parties are represented) and a judicial officer acting as a neutral third party facilitator.
The judicial officer for these proceedings is referred as a Judge Pro Tempore and is selected by the Judge assigned to your case who selects a Judge Pro Tempore from a Court Roster. The Family Court Settlement Conference is a pre-trial meeting wherein the Judge Pro Tempore evaluates the strengths and weaknesses of the case and assists the parties in reaching a settlement to resolve their case short of Trial, or narrow the issues to be presented to the Court at a trial.
Another court program in Maricopa County includes Mediation through Conciliation Services. This is a more narrow dispute resolution process and is typically used for resolution of legal decision-making and parenting time issues when children are involved in both pre-decree and post-decree matters.
This process is with a court approved Mediator selected through Conciliation Services and only the parties are allowed to attend. The parties’ respective attorneys are not permitted to attend, and are not, therefore, directly involved in this process. Parties are encouraged to consult with their respective attorneys to prepare for this process. There is a nominal court fee for this process.
Disadvantages of Using a Court Appointed Mediator in Arizona
The advantage of utilizing a Family Court Settlement Conference Judicial Officer through the court’s ADR process is that it is free and through Conciliation Services the cost is minimal. The disadvantages associated with using the court’s service is that you have no control over who is assigned to your case and, therefore, are gambling as to whether the Judge Pro Tempore or Mediator assigned to your case is competent in all areas of family law.
If the appointed Judge Pro Tempore or Mediator is not competent you may waste a significant amount of time and money attending that Family Court Settlement Conference or Conciliation Services Mediation. We have experienced this several times. Family Court Settlement Conferences scheduled through ADR are typically set out several months from the time the court schedules the conference, which means additional months of potential costly litigation during the ensuing time period.
The other disadvantage is not all mediators or Judge Pro Tempore’s are equally skilled at conflict resolution, which may impede your ability to settle your case. Another disadvantage is that a mediator or Judge Pro Tempore who lacks substantial experience in family law will be very unlikely to provide an accurate educated opinion regarding how a judge may rule on any particular issue. Lastly, the two hours provided is rarely sufficient time to resolve all of the issues in your case.
Advantages of Using a Private Divorce Mediator
A private method of Alternative Dispute Resolution is private Mediation. Private divorce mediation is a process involving both parties and, if represented by counsel, each parties’ attorney. The parties and their attorneys appear before a neutral Arizona divorce mediator who is typically, but not always, a licensed Arizona attorney. The private mediator will charge the parties for their time spent mediating the case. There are several ways you may participate in private Mediation.
We very often choose to use a private mediator for our own clients. The advantage of this approach is we ensure we choose an attorney who is well versed in Arizona divorce and family law issues, has demonstrated tremendous skill in successfully mediating cases based upon our prior experiences with that mediator, and has the experience in divorce and family law cases to be in a position to provide an educated opinion regarding how a judge may rule on any particular issue.
Also, we may schedule the mediation for any length of time needed, whether that be two hours or all day. Lastly, most private mediators can immediately schedule the mediation, which may save several months of costly litigation spent waiting for a court ordered mediation. The disadvantage of hiring a private mediator is that you have to pay for his or her services, but we find that cost is often outweighed by all of the advantages of hiring a private mediator.
Choose a Qualified Arizona Divorce Mediator
We would be remiss if we did not inform you that our founder, Chris Hildebrand, has practiced family law for twenty years and has successfully conducted many divorce mediations. In one such mediation, the two family law attorneys met with Chris prior to the mediation and helplessly informed Chris the parties were too far apart, neither party was willing to move from their entrenched positions, and that there was no way the case would settle that day.
By the end of the mediation, Chris was able to assist the parties in reaching an agreement on every issue and both parties, as well as their attorneys, were very happy with the outcome.
Which leads us to answer the question of how to choose the best Arizona divorce mediator for your case. You need to locate an attorney who has three primary traits. First, the mediator must have a thorough understanding of divorce and family law, as well as trial experience to be in a position to accurately advise the parties of the likely outcomes if the case were to proceed to trial.
The mediator also needs to be empathetic to the issues each party has a strong emotional or financial concern about, yet still strong in his or her approach to mediation. The mediator also should have a high level of what is referred to in the psychological field as emotional intelligence.
If you have not read about the studies and research on emotional intelligence, I would strongly recommend you do. It is as important, if not more so, than intellect; particularly when an attorney is acting in the role of a mediator.
Be Prepared for Your Divorce Mediation
It is imperative that before you attend mediation you are fully prepared to clearly and concisely communicate your position on the various issues, the law that applies to each issue, and the facts that support your position. Your goal is to provide a well thought and reasonable plan for how you believe the case should be resolved.
You should also plan equally as well to argue against your spouse’s position on the issues, their reliance upon the law if they misinterpret the applicable laws, or the facts alleged by your spouse.
We prepare a very detailed written Mediation Memorandum clearly setting forth all of our clients positions, the laws supporting each position, and the facts supporting our proposal for resolving the case.
We attach to that Mediation Memorandum copies of sworn witness affidavits, financial documents, correspondence between the parties and/or their counsel, police reports, educational records, medical records and anything else that may prove our case.
Our goal is to win the mediator over in favor of our case before we ever step foot in the mediator’s office. We have found it to be a very important tool in receiving excellent outcomes in our clients’ mediations.
Contact Our Scottsdale Arizona Mediation Attorneys
Contact us today (480) 305-8300 to schedule your consultation with our Scottsdale Arizona mediation attorneys regarding mediation services or any other family law matter.