Mediation provides an alternate method of resolution to the adversarial process of litigation. Two or three mediation sessions are usually required and result in the preparation of a final resolution either in the form of a settlement agreement or a proposed court order. The mediation process is by nature non-confrontational and non-adversarial resulting in more successful settlements since all parties are committed to the ultimate goal — the mediated settlement.
When Should You Choose Mediation Over Going to Trial?
Not all cases get resolved by a trial. In fact, the large majority of cases settle before a trial can be conducted. One of the most effective ways of effectuating an amicable resolution of issues is by means of mediation.
Mediation is a process by which the two parties meet with a professional, disinterested neutral with an eye towards effectuating some sort of compromise so that a final agreement can be reached instead of risking the stress, uncertainty, and expense of trial. If the parties are represented by attorneys, the attorney can participate as well.
Mediators are often senior family law attorneys or retired family law judges. In session, they will help each of the parties understand the strengths and weaknesses of their positions as they relate to the other party and help generate constructive ideas for reaching compromise. While mediation does not always guarantee that settlement will be reached by the end of the session, it does give the parties an opportunity to see how their varying positions are viewed by a disinterested neutral who is familiar with the subject and to perhaps look at those positions from a new perspective.
Mediations are conducted in a manner to try to keep the parties comfortable enough to continue the session and keep talking. Often, the mediator will utilize the caucus method by which each party and his or her attorney is in a separate room and the mediator travels back and forth between the two rooms in an effort to discuss and narrow differences. This is intended to help reduce the level of hostility and tension that might otherwise hamper the proceeding.
If agreements can be reached, they are put in writing and signed. It is not enough to have a simple handshake at the end with a promise to prepare a formal written agreement later. A binding settlement must contain proof of agreement as to the terms and the best way to do this is to have a written document summarizing those terms signed by both parties.
Mediations require patience, compromise, and the ability to see the other party’s perspective. If there is a significant history of domestic violence between the parties or if there is an active Order of Protection in place, mediation may not be scheduled or conducted.
The court may be able to provide limited mediation services at a reduced cost.
While there is a significant number of skilled attorneys and retired judges who are frequently employed as mediators, the court may itself offer mediation services at a significantly reduced fee utilizing other skilled attorneys and retired judges who volunteer their services. This is often known as Alternative Dispute Resolution, or “ADR”.
While the services provided by ADR are valuable and of high quality like those afforded by private mediation, there are limitations. Usually, the duration of an ADR session is limited to three hours. In addition, because it is in high demand, there may be a fairly long wait for a scheduled ADR session. The court may also direct that more affluent individuals engage private mediators rather than ADR so that ADR may make more slots available for individuals who cannot afford private mediation.
Victor Garnice has guided many clients through mediation sessions, many of which have resulted in complete or partial settlement, both through pre-session preparation and participation during the session. We invite you to contact us at Garnice Law or call the firm at (480) 351-4804 to set up your initial consultation about our mediation services.
Q: What are the different types of mediation?
There are various methods and styles of mediation: Evaluative, Facilitative and variations, such as custodial mediation.
Facilitative mediation is the best-known style of mediation in which the mediator serves as a neutral and assists the parties in reaching an agreement. It is process oriented and parties direct the outcome.
In an Evaluative mediation session, the mediator assesses the strengths and weaknesses of the parties’ case and proposes options to settle the dispute. Unlike binding arbitration the parties are not bound by the mediator’s insights or predictions.
As mediation evolves, so do the various approaches and methods. It is becoming more commonplace to engage the services of an expert to participate in mediation for complex litigation matters. The expert may be a trained mediator and assist in facilitating the mediation as a co-mediator, or may participate in the mediation in order to clarify technically complex matters. New to family law mediation is the practice of combining a lawyer mediator with an experienced psychiatrist/psychologist/custodial evaluator, generally as a co-mediator. Custodial mediation stems from the notation that it is far more beneficial for the child(ren) at issue in a dispute, for the parents to work collaboratively to define the new parenting roles that the dissolution of a marriage requires.
Q: What qualities should I look for in a mediator?
Arizona does not have licensing requirements for mediators, so be sure, that he or she is qualified. At a minimum, the mediator must be familiar with the matrimonial law of Arizona.
As with a lawyer, you should feel comfortable with the mediator. Your spouse must feel comfortable as well. Mediation has a better chance of success if you both feel the same way about the mediator. Avoid using a well meaning, however qualified, friend.
Q: What is divorce mediation?
Divorce mediation is a process whereby you and your spouse meet with an individual, the mediator, for as long as necessary to identify and resolve the issues existing between you. A mediator may be a lawyer. Once an agreement is reached, the lawyer/mediator writes it up, and may recommend that each of you take it to a lawyer for review, if lawyers were not present at the mediation.
Q: How is arbitration different from mediation?
Unlike a mediator, an arbitrator plays no role in trying to get the parties to resolve the case. Her job is to hear the case. However, like some judges, an arbitrator, before hearing the case, may try to convince both sides to settle based upon what she knows of the case up to that point. This is different from working with the parties to identify and come to mutual agreement about issues.
Q: How do you select an arbitrator?
The attorneys for each party will usually agree on someone to arbitrate the case. The individual may be a matrimonial lawyer but certainly should be very familiar with matrimonial law. Unlike a judge, arbitrators are paid by the parties, not by the government. The issue of who will pay for the arbitrator should be resolved before the arbitration begins.
Q: If the arbitrator’s decision cannot be appealed, why would anyone use an arbitrator?
Some divorces become very prolonged and expensive, and arbitration becomes a means to stop what seems to be ceaseless litigation. Spouses who have been involved in literally years of litigation may welcome the chance to have their case heard, once and for all, and may have no intention of appealing the outcome, no matter what the result. Selection of a respected, knowledgeable arbitrator ensures that results will be fair.
In addition, all the issues in a case except one–for example, support–may be resolved, and the parties may want to move the case along by having an arbitrator decide this final issue.
Finally, issues that arise after a divorce, which must be resolved within a certain period of time, such as payment of a child’s private school, might be resolved more quickly by an arbitrator.
Q: When is arbitration useful?
In a divorce, arbitration can be useful in cases that have been prolonged because of court schedules, provided disclosure of marital assets and income is complete. Use of an arbitrator may cut short the waiting period to have a case heard by months or even years.
Family courts are backlogged with cases and it is not unusual for the court to schedule several hours for trial where argument for custody, parenting time, support, property and debt division is considered. Arbitration allows greater latitude and time for the parties to be heard.
Q: How is arbitration different from a trial?
The outcome of a trial can usually be appealed. Arbitration usually cannot be appealed. Arbitration is usually less formal than a trial–the rules of evidence may or may not be followed, depending on what rules everyone agrees to. An arbitrator can be more flexible than a judge, because before the arbitration begins, both sides can agree to what rules the arbitrator is to follow
Q: What is arbitration?
Arbitration is the process whereby an arbitrator resolves the issues existing between you and your spouse following a proceeding that is conducted very much like a hearing or a trial. Arbitration is usually binding, which means that neither party can appeal the arbitrator’s decision.
Q: What are the disadvantages of divorce mediation?
Divorce mediators do not have the authority of a judge behind them, and therefore lack any power to make binding demands on either party. Thus, the success of mediation depends entirely on the cooperation of the parties. Similarly, the mediator has no way to compel either party to do anything, such as reveal income or assets, within a reasonable period of time.
Second, one spouse sometimes perceives the mediator as favoring the other, and when this happens, the likelihood of reaching an agreement with the mediator diminishes.
Third, a mediator may not advise you fully of the law, and the possibility exists that you will reach an agreement unaware of rights you have lost.
Next, a mediated agreement should still be reviewed by a lawyer for each side or the lawyers should participate.
Finally, there is no mediator/client privilege. That means that what you disclose to the mediator is not confidential. However, the Mediator cannot be subpoenaed to testify and none of the dialogue/offers or legal positions discussed in mediation can be divulged or admitted in subsequent litigation.
Q: How much does a divorce mediator cost?
Some divorce mediators have a set fee for all sessions, from inception to agreement. Others, like lawyers, charge an hourly rate. Be sure this information is provided to you and your spouse before you hire a mediator, and that it is in writing. Make sure you and your spouse have agreed, in writing, on how the mediator’s fees will be paid. Like some lawyers, some mediators require an advance fee to be paid before any work is undertaken.
In other words, you may be paying three people, but the total fees may be less than if you had paid two, or if you had proceeded with litigation.
Q: Does an attorney play any role in the divorce mediation process?
Some divorce mediators are attorneys, but it is best for each spouse to have an attorney, independent of the mediator. Mediation often involves the parties’ attorneys. A skilled mediator should be adept at allowing the parties to dominate and directing the lawyers to refine written agreements, confer with his/her client about the legal factors (privately) and assist in the mediated settlement. If attorneys are not present, it is important that each parties’ attorney review the agreement reached to ensure that no areas have been overlooked. In addition, because many mediators are not lawyers, a lawyer is still needed to draft the final agreement and/or court documents required to finalize a divorce
Q: Who should use a divorce mediator?
Divorce mediation is often used by couples who seek privacy and want to resolve the issues in their marriage such as custody, support, property distribution. In some cases mediation is sought because the parties do not want to use lawyers for fear the lawyers may make the case more difficult or expensive than it need be. Mediation works for couples who have gotten along during the marriage, and are in agreement about becoming divorced. In addition, it works best for couples who are each fully aware of the income, assets and expenses of the other.
In instances where domestic violence has occurred, mediation is complicated and generally not advised unless carefully coordinated often with lawyers for the parties participating in the mediation. In cases involving extreme domestic violence, mediation is inappropriate.
Q: My spouse has suggested that we try mediation instead of taking our divorce to court. Does mediation have any advantages over a traditional litigated divorce? How are my rights protected during mediation?
The first step in protecting your rights during mediation is to assess whether your spouse genuinely wants to participate in the process.
In many cases, mediation can greatly reduce the disruption and trauma your children will suffer due to your divorce, and each parent can and will become supportive once they realize the overriding importance of their children’s well-being. But for mediation to truly work, each spouse has to be willing and committed to listen and give fair consideration to the goals and needs of the other. If this is not the case, you should strongly consider whether it is the best to move forward immediately with the litigation.
A mediator does several things: interprets the needs of both parties; attempts to defuse hostility, infuse momentum, and project a sense of fairness; acts as an “umpire” to prevent one party from coercing or bullying the other; explains the law and the rights of each party, and encourages reasonable and fair compromises. The ultimate goal of mediation is to reach a full and final agreement, and to resolve all of the issues arising in the divorce, including child custody and visitation, child and spousal support, and property distribution. The mediator then drafts a written agreement and presents it to each party, thus ending the mediator’s role. Participants should then retain independent legal counsel to review the final agreement and to process the divorce on an uncontested basis.
Mediation often involves the parties’ attorneys. Your strongest protection in the mediation process is that you aren’t bound by the agreement(s) reached in mediation, unless it’s in writing and it’s signed by both parties in the presence of a notary public who acknowledges its execution. It’s extremely important that you have the written agreement prepared by the mediator reviewed by an independent lawyer of your own choosing. This is your ultimate protection against an unfair deal.
If you change your mind before formally executing the written agreement, this isn’t considered to be a breach of contract (as noted above, the agreement is not legally binding on the parties until formally executed). Your lawyer will first ascertain that you were aware of your rights and of the applicable law. If your lawyer is satisfied with this, he or she shouldn’t question the terms and provisions of the written agreement unless something appears to be egregiously unfair or unconscionable. However, if there’s a mistake your attorney will intervene to protect your rights.
Your attorney will make sure the agreement contains all terms normally contained in divorce agreements. The agreement you reach in mediation will be put into the form of a written agreement, which should contain the standard provisions common to separation agreements as well as the unique provisions pertaining to your particular settlement. Before you formally execute the agreement, any problems detected by legal counsel for either party can still be addressed and resolved. It is important, therefore, that you obtain independent legal review of the agreement and give it careful consideration before signing it. Although the lawyer who reviews the written agreement is working to protect your rights, he or she generally doesn’t try to upset the deal you made, in good faith, through the mediation process. In most cases, the written agreement, only drafted by the legally trained mediator will be subject to minor changes.
Q: Is divorce mediation cheaper than going to lawyers?
Not necessarily. While a divorce mediator may charge you less than a lawyer would, you and your spouse should each still have a lawyer (not the same lawyer), and your lawyer should participate in the mediation with you, review the mediated agreement you have reached. That means you will be paying the mediator and two lawyers, rather than just two lawyers, if you had not gone to the mediator. However, you may save money because the lawyers’ work should be minimized as a result of the work the mediator already did.