There are certain circumstances where couples making the decision to divorce either choose a mediation process, or the court requires the couple to go through an Alternative Dispute Resolution (ADR) process. In some cases, a couple makes the choice to go through the mediation process to save costs as well as avoid more adversarial paths to divorce. In other cases, because the courts are inundated with divorce filings, the judge may attempt to have a couple resolve their legal issues pertaining to divorce through an ADR process instead of hearing the matter at trial. Whichever way you may find yourself faced with an alternative process in divorce, you should ensure that your divorce lawyer should have mediation experience and training.
Divorce Inherently Involves Negotiation
In almost every divorce case, both parties must negotiate at some point regarding serious matters such as child support calculations, child visitation schedules, the equitable division of marital property, and spousal support. Many divorce cases do not go to trial, but rather these legally complex issues are negotiated between both spouses, typically through their attorneys. Even without an official mediation process, a divorce lawyer must have experience and expertise regarding how to successfully negotiate on behalf of their client. Divorces are inherently emotionally intense endeavors, and a divorce lawyer’s ability to remain calm and confident without being abrasive only helps their client achieve their goals in a divorce. The Harvard Negotiation Law Review indicates that training and experience regarding mediation only help lawyers throughout the divorce process better represent their client’s interests, and resolve the difficult disputes in a more amicable way.
Voluntary Mediation Between Spouses
In many cases, spouses will make the joint decision to handle their divorce through a mediation process. It is important to note that while one spouse may make the independent decision to divorce, both spouses must agree to voluntary mediation in order to move forward with the process. There are several reasons that spouses may make the decision to move forward with a mediation process instead of an adversarial divorce trial, including the following:
- The mediation process is typically less expensive than an adversarial trial
- The mediation process often results in decisions and settlements agreeable to both spouses
- The mediation process is completely confidential, and unlike a divorce trial, there is no public record of any discussion in the mediation hearings
- The mediation process allows the spouses to feel as if they are in more control throughout the process and are working together to make final determinations in their divorce
- The mediation process sets a collaborative foundation upon which the spouses may then work to continue to communicate effectively for any continuing issues, which often exist if there are minor children involved.
While voluntary mediation is often worth the effort by both spouses, it is important to note that it is not for everyone. Any marriage that involved any kind of domestic violence or abuse should likely not take the route of voluntary mediation, as one spouse may feel intimidated, threatening, or frightened by the other spouse, making the process of mediation unproductive. However, in many cases, when spouses make the decision to go through the voluntary mediation process, it can prove to be a powerful tool to resolve issues. If you are considering the mediation process as part of your divorce, you still have the legal right to receive representation throughout the process. In order to ensure your legal rights remain protected, it is important that your divorce lawyer has mediation training and experience in order to best represent your legal rights during the mediation process.
Court-Ordered Alternative Dispute Resolution
In some cases, a judge will order divorcing spouses to go through an ADR process. Again, because divorce courts are inundated with divorce petitions, the ability to send divorcing spouses with smaller issues to ADR helps the court decrease wait times overall as well as prevent all divorces from experiencing exponentially long wait times for resolution. The following are some helpful facts regarding the ADR process in order to better prepare you for the experience.
Timing of Court-Ordered ADR
In most cases, the judge will order a couple to seek ADR at the first hearing of their divorce. If both parties are represented by legal counsel, this meeting will be called a Resolution Management Conference (RMC), and if neither party has legal representation, the first court hearing will be called an Early Resolution Conference (ERC).
Types of ADR Available to Divorcing Couples
There are many different types of ADR available to divorcing couples in an attempt to resolve the outstanding issues in their divorce, including the following:
- Arbitration. 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. A person appointed by the court to assist with the implementation of court orders that makes recommendations to the court regarding the clarification, modification, and enforcement of custody and parenting time orders.
- Family Law Master. A person appointed by the court, which may be 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. As previously indicated, 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. 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. A confidential process, (except in certain cases), 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.
How Mediation Affects Your Divorce Case
The best-case scenario is that mediation effectively resolves all outstanding issues regarding your divorce. In theory, every single area of a divorce (child support, child custody, spousal support, division of marital property, etc.) can all be handled within the mediation process. Having an experienced attorney familiar with the mediation process can help ensure that your mediation experience protects your legal rights. However, without both spouses properly committing to the mediation process, many issues may remain unresolved. In this case, the mediation process will eventually end, and the issues will resolve through a trial or court process in a more adversarial manner.
It is important to note that some issues may be resolved in the mediation process, while others remain outstanding and unresolved. In these cases, the divorcing spouses can make the decision to sign an agreement regarding the resolved issues under a Rule 69 Agreement, which waives your right to a trial on that specific issue, and the agreement is placed in the official record of the court for the divorce. If there are any unresolved issues, it is imperative that you include those issues in writing as well to ensure that these outstanding issues are specifically identified and will be set for trial to resolve. If a couple fails to memorialize in writing that there are outstanding issues remaining, a court may (and often does) assume that there are no further issues in the divorce and resolves the case formally. Having a divorce lawyer with mediation experience can ensure that your legal rights remain protected, and any unresolved issues will go to trial to protect your legal rights.
Contact a Divorce Lawyer With Mediation Experience
Even if you do not expect to go through the mediation process in your divorce, a court may order ADR. Therefore, it is always a best practice to have a divorce lawyer with mediation training and experience in your corner. Contact one of our experienced family law attorneys at My Modern Law in Scottsdale, Mesa, Peoria, or Phoenix, Arizona who can provide you with answers and ensure you receive the best possible legal advice regarding mediation and your divorce. Contact us at (480) 470-7731 or online today.
