ADR: What is it and how does it affect my case?
I just went to my first court date and the judge is sending us to ADR. What is ADR and how does it affect my case?
“ADR” is an acronym for Alternative Dispute Resolution. The courts are inundated with family court filings. Logistically the courts simply could not hold evidentiary hearings for every petition filed; at least not expediently. This would drastically increase the wait times to get into Court. In an effort to alleviate this logjam, the courts look to resolve matters short of evidentiary hearings/trials. One way the Court does this is by ordering the parties to attend ADR.
The courts will generally set ADR at the first hearing. The first hearing if either party is represented by an attorney is called a Resolution Management Conference (“RMC”). If neither party is represented the first court hearing will be an Early Resolution Conference (“ERC”).
The court has many options for trying to resolve your case using ADR:
- “Arbitration” means a process in which parties agree to submit the issue(s) in the dispute to a neutral third party or parties retained by the parties for a binding decision, in accordance with the Arizona Arbitration Act, A.R.S. §§ 12-1501 to 1518.
- “Parenting Coordinator” is a person appointed by the court to assist with implementation of court orders by making recommendations to the court regarding implementation, clarification, modification, and enforcement of custody and parenting time orders.
- “Family Law Master” is a person appointed by the court, including a family law conference officer, to take evidence on one or more disputed issues and submit a report to the court containing findings of fact and conclusions of law.
- “Mediation” means a voluntary confidential process in which parties enter into one or more private discussions with a neutral third party to resolve the dispute. Mediation can be conducted by a conciliation court counselor, a mediator assigned by the court from a court roster of mediators, or a private mediator retained by the parties.
- “Open Negotiation” means a process of non-confidential negotiations between the parties conducted by a neutral third party (the negotiator) to attempt to resolve their dispute. In the event the parties are unable to resolve some or all of the issues in the dispute, the negotiator reports the disputed issues to the court.
- “Settlement Conference” means a confidential process, except as provided in subdivision D(7), in which parties to a dispute meet with a judge, commissioner, or judge pro tempore acting as a neutral third party to engage in settlement discussions.
- “Other ADR Processes.” The court may create, administer, approve, or authorize other ADR processes designed to provide the parties, who are or have been involved in, or are contemplating the filing of a family law matter, with an opportunity to resolve their dispute without court litigation.
The key when selecting your ADR process is to review the issues for your case. Some cases are better suited for Mediation than having a Family Law Master appointed, just as Arbitration is not generally used in parenting time cases. The other major thing to consider is whether or not you want the process to be confidential. If you would like the ability to discuss issues without fear that the Court will be able see what you discussed, then you would want to request a confidential option. If you are not concerned with that, then an open negotiation or another non-confidential option may be more appropriate.
Okay, but how does it affect my case?
That depends. ADR can be used effectively to resolve all the issues in your case. That is the best-case scenario. Not all issues can be resolved using this process. Both parties must be interested in resolving your case for it to settle. If either party does not wish to fully participate, it can be an unfortunate waste of time.
What if we resolve some issues but not all issues?
This happens frequently. Whatever issues are resolved should be agreed to in writing. Both parties should sign and date the agreement. If you make an agreement in writing at ADR, it is binding and is a Rule 69 agreement. Once you have agreed to an issue you have waived your right to trial on the issue and it is very hard to set aside. So you have to be sure you understand and are in agreement. Agreements can also be placed on the record, which means they are being recorded. These agreements are also binding. If there are issues that remain unresolved it is IMPERATIVE that you include the unresolved issues in writing or recording so that there is no question 1) whether the matter needs to be set for trial; and 2) what the unresolved issues are. If you fail to address what the unresolved issues are, the Court can and often will assume that there are no further issues and your case is resolved.
Husband and Wife have a marital home, Husband’s retirement account, and personal property (clothes, pictures, dishware, etc.). If the parties attend an open negotiation and agree that the parties will split the proceeds for the sale of the marital home and have already exchanged personal property but fail to address Husband’s retirement, then the Court can assume that Wife waived her right to trial and her interest in the retirement account. This can have dire and expensive consequences. So make sure that if there are outstanding issues you list them or at the very least state that there are unresolved issues that must be dealt with so that the Court is aware they exist.
ADR can be very helpful in resolving many family law cases. It is important that you understand the process and how it can affect your case either positively or negatively. It is also vital to understand if the process is confidential and that indicating unresolved issues is just as important as listing and stating the terms of the agreement. As always, if you have questions I do recommend speaking with a family law attorney for further information. Good luck.