Serious conflict within your relationship or family can be a devastating situation that requires legal measures to move forward. However, if proceeding directly to litigation in family court sounds daunting to you, consider whether you and your loved one can address the issue outside the courtroom with a trained professional. First, you must determine whether you need counseling or mediation.
Counseling typically involves mental health professionals who aim to target your conflict’s roots. Diagnosis, therapy, and treatment of personality problems that cause relationship issues are common in counseling. These conversations will delve into both your histories, including personal and family considerations. The end goal for marital and family counselors is to use analytical skills to help the parties understand the cause of and mitigate the behaviors causing the conflict.
Mediation focuses on dispute resolution, helping you address a specific issue and establish a legal plan to move forward. It aims to allow both parties to co-exist by establishing clear boundaries and rules. Though mediation does not focus on history and causes of the behaviors, it can help resolve negative, recurring interactions and ongoing disputes.
Mediation and Arizona Law
Mediation is a process by which two or more parties choose to resolve a conflict via a series of private discussions overseen by a neutral third party. This process is voluntary and must be kept confidential, according to the Arizona Rules of Family Law Procedure. Mediation is certainly different from counseling, as mentioned, but it is also different from litigation (settling the case in a court of law).
Conversations with the third-party mediator are confidential and cannot be disclosed by anyone involved, aside from a few exceptions like suspected child or vulnerable adult abuse. By contrast, most court proceedings are public. With mediation, the authority to make decisions rests fully on the disputing parties.
These discussions are non-binding, and the parties must voluntarily consent to the final agreement. In litigation, the final decision is made by a judge, and the decision is binding unless it is later amended or dismissed by the court. Any agreement made in mediation must be in compliance with Arizona Rules of Family Law Procedure 69. In addition, all parties involved must also agree that the decision is equitable.
Mediation in family law is often voluntarily sought by the parties in question, but it can also be mandated by the court system. The court does not mandate that you find a solution in mediation- only that you attempt to find a solution through the help of the mediator.
Family Law Mediation Topics
Mediation in family law can be used to solve many different types of conflicts. The agreement should cover any key issues for the mediation needs. This can include:
- Marital property and debt division, in which parties divide all marital or relationship assets fairly and equitably.
- Custody arrangements for parenting time (physical custody) and decision making (legal custody) in the case of minor children. This can apply to both married and unmarried parents or may also specify any potential stepparents’ roles in the children’s lives.
- Determining communication methods for the disputing parties. For example, the parties can outline what constitutes an emergency and the preferred type of communication.
- Duration and amount of spousal maintenance payments, if applicable.
- Proposal of future dispute resolution methods. In the event of a disagreement, identifying a neutral family member or friend as a tiebreaker can mitigate minor issues. In the case of larger issues, it can also specify a return to mediation or heading straight to court.
Arizona Family Law Mediation Requirements
Though mediation is a less-formal process than litigation, there are still several requirements for a successful session.
- Positive Mindset—Both parties must understand that mediation is meant to find a compromise both parties can live with.
- Healthy Body—Mediation can be a physically and emotionally draining experience, and a good night’s sleep and healthy foods can prepare you for the difficult day.
- Court Documents—Bring copies of any documents relating to the court filing, if applicable.
- Proposed Plans—Determine the things you would like to accomplish from the mediation and how best to meet those needs. This may include a potential parenting plan and how it fits into your schedule and the child’s school or extracurricular schedule.
Family Law Mediation Benefits
Mediation offers many benefits for those experiencing a conflict. Mediators have immense knowledge and skill dedicated to facilitating a compromise the disputing parties could not reach on their own. They are fluent in the requirements needed for the agreement to be valid and legally binding. Mediators do not assign blame or decide who is right in any situation. They guide the conversations to produce solutions that empower both parties within the conflict.
However, litigation can also resolve conflicts, so why do courts push for solutions through mediation? There are many benefits to mediation-based resolutions versus litigation.
Confidentiality
Conversations with a mediator are confidential- nothing discussed during the meeting can be used against the people involved, even if the case progresses to court. This promotes honesty and full disclosure to reach mutually acceptable terms without fear of the information harming their case.
Greater Control
An agreement reached through mediation must be supported by all the disputing parties. If the agreement meets the rules outlined in Arizona Rules of Family Law Procedure 69, the solution reached through joint support will be binding. If a decision is determined through litigation by a judge, the disputing parties submit evidence to the court and the judge makes a decision regarding that evidence. The disputing parties do not have a say in the outcome, and one or both may be unhappy with the decision.
Quicker Outcome
Mediation typically takes less time to resolve conflicts than litigation, allowing for a quicker solution. Mediation may conclude in a few sessions, versus the months or years sometimes associated with a court case. This means you can start finding your new normal post-conflict without waiting through lengthy court proceedings. This can be especially important when dealing with the delicate matters found in family courts, often concerning children.
Decreased Cost
Working through a few sessions of mediation dramatically reduces the time required with a lawyer, avoiding the time-consuming formalities during litigation. Overall, solving problems between the disputing parties means fewer experts need to be hired for case resolution. Court costs can be expensive and unpredictable, and utilizing mediation can save thousands of dollars for both parties.
Amicable Relationships
While there is a conflict that needs resolving, that does not mean the people involved cannot work together to solve it in everyone’s best interests. Remaining level-headed with the aid of the mediator can reduce the feelings of anger and betrayal that frequently occur during litigation. The aim of mediation is to work together, while litigation often pits the disputing parties against each other.
Simplified Corrections
Mediation can include a clause that directs all parties to reconvene if corrections need to be made regarding the agreement. This saves time and money, as the assigned mediator will already be familiar with the case if the disputing parties need to meet again.
Support
Conflict resolution can be a difficult process, but a mediator is trained to work within these tricky situations. They can act as a neutral facilitator that offers support to both parties throughout the process.
When Does Mediation Begin?
Mediation can be voluntary or court-ordered and can begin at any time in the conflict resolution. For example, if mediation is voluntarily entered before filing a divorce petition in Arizona and a settlement agreement is reached, you have the option to file for an uncontested divorce. This allows for a streamlined procedure in some Arizona counties.
Mediation can also begin during the court proceedings process, especially if you or your spouse were not ready for mediation before filing. Similarly, a judge can also demand that you attempt mediation before continuing with the resolution. Mediation is typically required in any disputes that involve custody and parenting of minor children. Disputing parties with minor children have the option to use a court-appointed mediator within Conciliation Services or a private mediator. Disputes that do not involve children must go through a private mediator.
The Mediation Process
If you’re considering mediation, it can help to understand the process before beginning.
Once you begin mediation, there is a sequence of events the mediation appointments will typically follow. However, these sessions can be relatively flexible, and may include some or all the following steps, depending on the case needs and the mediator:
- Planning—You will decide when and where the session will occur, along with who should be present. Lawyers or family members may attend mediation.
- Introduction—When everyone is together, the mediator introduces the disputing parties, outlines what to expect from the mediation, and states the rules of the session.
- Presentation—Each party has the opportunity to present their view of the dispute and vent any personal feelings without being interrupted.
- Discussion—Questions and conversations occur, with the intent of fully understanding each side’s needs and concerns. The mediator acts as a translator, clarifying the words spoken so everyone is on the same page, and steers the conversation to productive means if it derails into aggression and discontent.
- Separation—A mediator can split the two disputing parties apart to reduce emotions and give the mediator the full picture to better facilitate a mutually beneficial solution. The information disclosed with each party is completely confidential and will not be disclosed to the other party.
- Negotiation—After all the information has been disclosed, proposals to meet both parties’ needs can be formulated. The mediator will lead these discussions with both groups together or with the parties separately, using shuttle diplomacy.
- Closure—This occurs when an agreement has been reached or the time allotted has run out. If an agreement has not been reached, another session can be scheduled.
What if an Arizona Family Law Mediation Is Unsuccessful?
Upwards of 70% of cases that utilize mediation will be successfully solved during the mediation process. However, the remaining disputes cannot be solved during mediation for a variety of reasons.
Some cases should not use mediation at all—specifically, cases that involve abuse or domestic violence. Because mediation requires the participants to be on equal terms with one another so each will benefit from the session, improper power balance dynamics will not be effective for the abused party. Substance abuse is also a factor that should discourage using mediation. The next steps when mediation cannot be used or is unsuccessful are arbitration and litigation.
Mediation Versus Arbitration Versus Litigation
Mediation can be useful for many family court cases and is a preferred way to solve disputes before they proceed to family court. However, it is important to understand arbitration and litigation, so you are prepared for the possibilities. Litigation is a court case in front of a judge. This type of case can be expensive and unpredictable, as the judge makes the decision only from the evidence presented.
Arbitration sometimes follows mediation and applies to issues that could not be solved with mediation. A hired attorney acts as a private judge during an arbitration hearing and serves as the neutral third party, arriving at a final decision after hearing the presented evidence. The benefit to an arbitration hearing is that it will occur much quicker than a court case and is much less formal. You can hire an attorney familiar with divorce and family law, and your mediator can also be your arbitrator, saving time and money because you will not need to bring another person up to speed on your case.
Editor’s Note: This article was originally published May 28, 2021 and has been updated August 16, 2022.
Ryan Reppucci, Founder/Director of Legal Operations of The Valley Law Group, is recognized as one of Phoenix’s leading family law attorneys. After graduating from Arizona State with the highest honors and inclusion in America’s most prestigious student honor societies, Ryan attended the University of Detroit Mercy School of Law. His career as a law student was decorated with numerous awards, including the University of Detroit Mercy School of Law Book Award, nomination for membership in Who’s Who Among Students in American Colleges and Universities, as well as Moot Court.