Divorce is almost always a difficult and emotional process, even when it’s an “amicable” split. The fact is that you’re ending a relationship you believed would be a lifelong bond. Given that, there is a growing awareness that the process of litigating divorce itself can make things worse—even worse than they need to be. Moreover, litigated divorces may become drawn out and more expensive, both in the financial and emotional costs. Once again, making the process worse than it needs to be. Indeed, even divorces that began cordially can become incredibly hostile and angry during a lengthy litigation.
The good news is that there is another option: divorce mediation.
In short, the goal of divorce mediation is to negotiate as many issues out of court in a more cooperative manner. Mediation is faster to resolve, less expensive, and more amicable than traditional divorce litigation.
But the first important term that needs to be negotiated and agreed upon is to have mediation. So let’s explore what divorce mediation is and how it works in Arizona.
Mediation 101
Consider that traditional divorce litigation is a civil action in court like any other lawsuit. It is a formal process, and the parties’ needs and desires may take a back seat to the required procedure. The litigants will argue their positions; a judge decides the outcome. The judge determines what assets go to which spouse, who gets alimony, and so on.
By contrast, in mediation, a couple negotiates the terms of their divorce. A mediator, a neutral third party, helps guide the couple’s conversation. The mediator asks questions to understand the issues better. The mediator may propose new ways of solving a problem. Mediators often have a preferred way of leading the mediation, but they can customize the sessions to better meet your needs.
And when it comes to the negotiation points, every decision is left to the parties’ themselves.
In a successful mediation, the mediator should be able to turn the parties’ agreed-upon points into a written settlement agreement that a court can approve as part of the couple’s divorce decree.
Ideally, the couple can use mediation for everything from childcare and property division to who gets the pets.
Even if it isn’t ultimately possible to agree on every issue, mediation can help the couple reduce the number of issues that need to be litigated in court.
Mediation is also a great tool for couples who have already completed a divorce decree. Post-divorce, mediation can be a convenient way to negotiate any new or outstanding issues, so you can quickly submit a new settlement agreement for the court’s approval. (For example, if one ex has a significant change in financial circumstance, or relocation or remarriage will impact a parenting plan.)
It’s important to note that divorce mediation is often confused with divorce arbitration, another form of alternative dispute resolution, because both are labeled as alternatives to litigation. But these are two very different processes.
Arbitration is essentially a mini-trial. The process is less formal and faster than in civil court, but—from a 50,000-foot perspective—the concept is really the same as filing a lawsuit. In arbitration, an impartial arbiter (often a lawyer or even a retired judge) is paid to listen to both parties’ arguments, and then the arbiter makes a decision. And the parties promise beforehand they will do whatever the arbiter decides, so the arbiter’s decision is binding.
In divorce mediation, you are in charge. You, not a third party, make all the decisions.
Even if a judge orders mediation, the judge only orders you to attend it. The hope is that you’ll make a good faith effort to participate in the process. But at the end of the day, you can say “No” to anything proposed. There’s no penalty (in or out of court) for failing to settle your issues. Refusing to settle just means you’ll be in court to litigate any remaining issues.
Preparing for Mediation
While each mediator may have a preferred format, generally speaking, mediation will usually entail a short series of meetings between you, your ex, and the mediator to negotiate particular topics. Usually, these sessions are face-to-face, but when necessary, it’s also possible to have “shuttle mediations” (where a mediator has separate meetings with each ex.)
When preparing for mediation, you should prepare a list of priorities. Identify what things you must have, what you’d like to have but can live without, and what you don’t care about. Use these to help develop a negotiation strategy.
Note that it’s a common practice for mediators to ask each ex to provide them with a memo that outlines their issues of concern and what they hope to take away from a mediation settlement.
You may also want to prepare copies of financial documents and additional relevant materials that help support your case—demonstrate your financial needs, obligations, and more.
Attorneys are not required for mediation, but they can provide a great benefit to you. First, they can help identify and prepare the relevant information. They can be present with you during the mediation sessions. Attorneys can help strategize negotiation points and marshal your best arguments. And they can explain how sticking points might be addressed in court if you cannot agree.
Those are just a few reasons why you should have an attorney with you during divorce mediation. To hear if mediation is the best option for you, contact our office (by phone at: 602-548-3400). We are happy to schedule an initial confidential consultation with one of our family law attorneys. Don’t wait. Call today.
Melissa Bower is a divorce and family law attorney in Peoria, Arizona. Mrs. Bower is a partner with Stewart Law Group. The firm helps clients navigate the legal complexities of divorce, child custody, child support, spousal support, property division and child relocation disputes.
