Alternative dispute resolution in Arizona, or ADR, makes it possible for spouses to avoid trial in their divorce. Why would you chose ADR? The process gives you a legal method of resolving issues in dispute without litigation and trial, rather through mediation.
Mediation and collaborative divorce are proven ADR settlement processes along with others used to reach agreements in family law proceedings. We will talk about these, but first you need to appreciate how important ADR is to minimizing divorce litigation and, possibly, eliminating your need to prepare for trial.
Despite their differences and heightened emotions, most spouses are able to work together on settling issues in their divorce or legal separation. Remaining in control of decision-making is one great motivator. Not airing private matters in front of the judge is another.
Divorce is a tumultuous, challenging time in a person’s life. Alternative dispute resolution can take much of the heartache and stress out of the process by limiting trips to court and saving on legal fees. Every trial requires substantial preparation and attorneys bill by the hour – time is money with attorney fees. Needless to say, there is no good reason to march toward trial without trying to settle disputes first.
With the decision to end the marriage, the pragmatic thing to do is hire a divorce attorney to represent you. The very notion of hiring an attorney can make you anxious, even fearful. We have all heard horror stories about everything going wrong when the lawyers got involved.
You are probably familiar with at least one celebrity divorce in which the spouses got caught up in seemingly endless ugly contests. First it was a battle over marital asset division. Then contested child custody. Then spousal maintenance, and so on. The result? The parties paid a small fortune in attorneys’ fees and wore themselves out in the process! And to what end? Did battling every aspect of the case help them move forward with their lives? Did it improve either parent’s relationship with the children?
Realistically, most lawyers have no desire to add to the spouses’ problems. The couple was already struggling to get along in their marriage and suffered, which is why they are divorcing now. Having said that, you still need to be prudent in selecting and working with a divorce attorney. Make certain the attorney will diligently look out for your interests at every step in the proceedings. Do not waste precious resources litigating details when those very issues could have been partly or completely resolved through ADR – the methods used to avoid a trial whenever possible. The more money you keep in your pocket throughout the divorce process, the more money you will have for your family. Utilizing ADR is the best way to keep costs down while obtaining positive results.
There are two misconceptions people have about divorce. One myth is that every divorce requires a trial. Wrong! That’s simply not true. Of course, the judge must issue a final decree of dissolution, but by no means must that require enduring a trial. Many couples are quite capable of resolving their differences and settling their legal matters. For example, they may agree on the details of legal decision-making and parenting time, spousal maintenance, community asset and debt division, among other things.
Just knowing that you and your spouse could come to an agreement on all or many of the issues raised in the divorce should give you reassurance. Settlement is not an insurmountable task by any stretch of the imagination. At Stewart Law Group, our divorce attorneys routinely see couples negotiate and settle their differences on key aspects of divorce. To be successful, though, both spouses need to give settlement their level best. ADR can help you with that.
Another myth is that you must have an attorney represent you in the divorce. That isn’t true either. You would be prudent to have an experienced divorce attorney involved in your case early on, but there is no legal requirement that you hire a lawyer. Individuals exercise their right to represent themselves in court by filing pleadings “pro se” or “in propria persona.” A spouse should still consider getting some help from a divorce attorney to ensure she is getting a fair settlement.
Assuming there is no domestic violence or risky circumstance, you and your spouse are free to sit down on neutral turf and work out settlement terms. Just remember, if the two of you cannot settle an issue (for example, who should move out of the marital home), then the judge must determine the matter for both of you. The better approach is to make your own settlements as a couple and, by doing so, keep the court out of it as much as possible.
No one should feel pressured into litigation and trial. Alternate dispute resolution is a more efficient, less expensive, less stressful first option. Is your divorce lawyer only interested in arguing the case at trial? Does your lawyer resist resolving disputed issues in a way that would eliminate the necessity of a trial? Maybe it’s time to reconsider whether you have the right person representing you. A knowledgeable and caring divorce attorney with Stewart Law Group will explain your ADR options. Just knowing there are other ways to resolve conflict can help reduce the stress of divorce and save on litigation costs. Mediation, for instance, has shown again-and-again to be an excellent tool for resolving disputes outside of trial.
Hiring the best attorney you can may not eliminate all of the emotional and financial pressures that divorce brings. One thing is certain, though. You should not feel pressured into a full blown trial when ADR options are still readily available. Yes, trial is sometimes necessary. But hold off on that determination until all other reasonable avenues for settling disputed matters have been exhausted.
Let’s talk about mediation. Whether mediating all disputed issues in the divorce or just one, such as a vacation parenting time schedule, mediation can help couples resolve disagreements. Here’s how:
Mediation is probably the most familiar form of ADR. The process provides a forum for settling disputes in the divorce or family law case in advance of any trial.
In Arizona, to resolve parenting time or child access disputes parents may motion to participate in the court’s Conciliation Services mediation program with a court-appointed mediator. Private mediation is another option spouses should consider if, for example, their marital estate is substantial. Importantly, any unresolved issue may be privately mediated, even when tangential to the divorce.
Private mediation is a confidential process with a mediator who serves as neutral facilitator. The mediator skillfully assists the parties in carving out their agreements. Mediation is purposeful, not a free-for-all.
Mediation conferences may or may not be conducted with both parties in the same room. Caucusing back-and-forth between the spouses is one technique mediators use to relieve tensions and encourage progress. Also, the legal issues to be mediated are pre-determined well in advance of the actual conference.
Private mediation differs from the court’s mediation program in several ways. With the former, the parties choose which issues they want to mediate and which private mediator they want to facilitate the sessions – the court is not involved in the confidential process of private mediation. With the latter, the judge orders the parents into mediation with Conciliation Services to develop a parenting plan and resolve access issues. In both forms, the parties’ signed mediation agreement is submitted to the judge to sign as an order, assuming there is no objection.
With private mediation, any issue may be presented for resolution, from division of a spouse’s military pension to ownership of the family pet. When the participants’ mutual decisions on all of the issues are written into a mediation agreement, signed by them, and submitted to the court, the end result is a consent decree from the assigned judge.
For mediation to work, it is critically important that both parties trust their mediator and, second, they trust that everything discussed during mediation will remain absolutely confidential forever. This well-respected form of ADR is a great opportunity to settle matters raised in the case. Especially because ancillary issues may be resolved during mediation sessions, too.
Mediation almost always represents a cost-savings. Fewer contended matters between spouses corresponds to fewer litigated issues by their attorneys. For the spouses, that’s a win-win.
Settlement is strongly encouraged in Arizona divorce proceedings, for very good reason. Former spouses walk away with a greater level of satisfaction with the outcome of divorce if they controlled how it came about. There is always give-and-take with divorce. But having a strong hand in crafting final divorce terms can make it easier for people to move on independently with their lives. Whenever there is a trial, the family law judge’s substantial discretion makes it difficult to predict with any certainty which way the court will rule. Consider how this could impact, say, valuation and division of a professional practice or how much the community estate was dissipated by a spouse’s marital misconduct.
Every contested issue has the potential of being fully settled with a good mediator, whether through the court mediation program or, alternatively, private mediation. Even when a trial is scheduled, many issues can be mediated successfully in advance, removing those settled matters from the trial agenda.
When full settlement is reached through negotiation, mediation, collaborative divorce, or other ADR forum, the need for trial is eliminated. Full settlement terms are reduced to a written separation agreement which is signed by the parties and filed with the court. No disputed issues remain for the judge to decide at trial because the spouses figured everything out for themselves!
Although quite different from mediation, collaborative divorce is another form of ADR. By choosing the path of collaborative divorce, the spouses have an opportunity to dissolve their marriage without going to court. The process has helped many couples save time, money, and significant emotional strain.
The “collaborative” in collaborative divorce means the spouses promise to work together toward their common goal – a complete divorce settlement. At the outset, both parties must agree to commit themselves to resolving every contended issue through negotiation, compromise, and agreement. The objective is for them to decide everything with finality. If spouses are capable of working things out – but choose to stay out of family court unless absolutely necessary – then collaborative divorce may be a good option.
This ADR process may not be realistic for every couple. But it has been around for decades and has worked well for a lot of people. Consult an collaborative divorce attorney with Stewart Law Group about choosing the collaborative divorce alternative, then decide if it’s a viable direction for you or not. It’s certainly worth investigating, so take a look.
First of all, the collaborative divorce process must be absolutely voluntary. No spouse can be ordered or forced to participate. Plus both spouses must agree that they will not take the divorce to court. How is it possible to get divorced without going to court? By full settlement followed by consent decree. But here’s the rub.
If either attorney moves the case toward litigation, then both attorneys are disqualified. Once the litigation path is taken, neither attorney can continue the representation. The commitment to collaborative divorce must be sincere, both for the parties and their collaborative divorce attorneys. To maintain the spirit of cooperative negotiation, the attorneys cannot go into the process with a plan to litigate if full settlement is not achieved.
What happens if the spouses are unable to negotiate a final settlement through the collaborative divorce process? In that event, both attorneys and their respective law firms must completely withdraw from representation. This is powerful motivation for the attorneys and their respective clients to really give it their best to make the process work. If the divorce proceeds to court, then both parties will need to find new attorneys from other Arizona law firms. Collaborative divorce is not a solution for everyone, but it may be a perfect fit for you and your spouse.
Collaborative divorce offers a team approach to conflict resolution. One that draws on the expertise of professionals. Forensic accountants, vocational rehabilitation experts, child custody evaluators, mental health professionals, and others provide educated opinions, explanations, and important data on issues pertinent issues to the divorce. Their purpose is to assist the spouses in making reasoned decisions regarding marital property division, the need for spousal support, a parenting plan, child support above the Arizona Child Support Guidelines, and so on. For instance, a mental health professional can offer data on the type of care and treatment an autistic child will likely require through age 18. Any number of qualified experts may be brought in to advise on specified matters, the cost of which must be borne by the parties.
In Arizona law, collaborative divorce is a wholly non-adversarial process. Instead of battling to win, the couple works together with their attorneys’ assistance and beside trained professionals. Their unified goal? To resolve all the legal issues in the divorce their way. Because each spouse is represented by an attorney, each has a lawyer for confidential legal advice, guidance, and strategy throughout the negotiations and in drafting the final settlement agreement.
Collaborative divorce begins with the core principles set out in a contractual commitment between spouses. These commitments cannot be violated and are made in the form of pledges, or promises, by the parties before negotiations can begin. This is where the parties begin their journey through the collaborative divorce process:
Mediation and collaborative divorce are two good forums for resolving disputes outside of trial. Talk to a divorce attorney with Stewart Law Group about the potential settlement ADR can bring to your divorce, legal separation, or family law case.
Contact Stewart Law Group in Arizona today at 602-548-3400 or email us. We have many attorney offices in Phoenix and the surrounding areas to serve you if you need help (clicking on a map pin below will bring up specific office contact details).