Using divorce mediation, as opposed to litigating in court, will allow you and your soon-to-be ex-spouse more control over what is included in your final divorce decree. Your mediator will act as a neutral third party to assist you both in reaching agreements regarding matters such as the division of assets and debts, spousal maintenance or alimony, child support, parenting time, legal-decision-making, etc. Mediation also affords you the flexibility of making agreements on issues that the judge would not have the authority to make determinations on.
Understanding the process by which negotiations take place is one of the best ways to set yourself up for success while preparing for divorce mediation. Although each mediator will have varying modes of operation and every divorce matter comes with its unique set of needs and circumstances, the process of negotiating the terms of a divorce decree via mediation typically remains the same across the board.
How Divorce Mediation Works
The goal of participating in divorce mediation is for the parties to negotiate and come to an agreement regarding all of the terms of their divorce settlement. A private or court-ordered mediator assists in that process by acting as a neutral third party. The mediation process and how those negotiations take place are highly dependent on the mediator conducting the session(s), the parties and their particular circumstances, and whether the parties are represented by attorneys.
Each divorce case is different and will require various issues to be addressed; some involve matters regarding minor children, some involve the division of a marital home or more complex assets, such as a business and/or commercial buildings, and so on. The number and complexity of the issues to be resolved at mediation will impact how many sessions it will require.
Some divorce mediations involve relatively simple or few issues to be resolved, which may be able to be accomplished in one day. Other matters with more complex, highly-detailed, and numerous agreements to be reached may take several sessions over a longer period of time.
The Process of Negotiating the Terms of the Divorce Decree
Mediation sessions can take place in a few different ways. The mediator and parties may meet together in person, or via video conference. Additionally, the mediator may wish to begin with all parties together in one room or one video conference, or they may wish to begin the sessions with the parties and their attorneys in separate rooms or conferences.
The mediator may also wish to have an introductory session with the parties (and their attorneys, when applicable) to meet them and gain a broad understanding of the scope of the issues at hand and the parties’ positions regarding the same. Once the mediator has met with all parties together and gathered the necessary information, negotiations will begin to take place.
If the negotiations between the parties become heated or unproductive, the mediator will likely separate the parties into different spaces with their attorneys, then caucus with them separately in an effort to sustain progress. This commonly takes place during the “nitty-gritty” of negotiations. Getting to brass tacks may be more productive if the parties are in separate rooms.
What Happens After Agreements are Reached
If the parties are able to come to mutual agreements, the mediator will draw up those agreements for the parties to execute a Rule 69 Agreement if they have only reached a partial agreement, or a final Consent Decree if all issues have been resolved. If the parties have agreed on parenting time for minor children, the mediator will also create a Parenting Plan for them to execute. After all is said and done, either the mediator or one of the parties’ attorneys will draft up a Consent Decree to be executed, then all will be submitted to the court for the entry of final Orders.
What happens if the parties can’t come to an agreement during mediation?
If the parties are not able to mutually agree to the terms of their divorce settlement, then they’ll likely need to pursue litigation in court. Before you can get a trial date, most Judges are requiring the parties to participate in mediation to give settlement a chance. If the mediation fails and a trial is required, the parties will have to file a Motion to Set with the court, which lets the court know that a trial is needed and the Motion to Set is a request to the court to set an actual trial date.
Due to the overwhelming volume of cases pending in the Superior Courts in Arizona, the actual trial date will be set months after the request is made by filing the Motion to Set. And, when the trial is set, most are set for half-day, meaning 3 hours, and some of the 3 hours are taken up with administrative or procedural matters. Each party gets ½ of the time or 1.5 hours or less to present their entire case on all issues to the Judge for a final ruling.
Mediation as a Tool for Resolution in Arizona Family Law Matters
Mediation as a means to conduct healthy, collaborative negotiations is an excellent tool for parties going through a divorce. If they are able to come to agreements with the help of a mediator, the parties will likely find mediation to be a time- and money-saving solution for them both and will allow a sense of freedom and flexibility that may not be afforded to them via litigation in court.
At Owens & Perkins, our highly-skilled and experienced divorce attorneys are equipped to navigate even the most complex mediations and are also qualified to serve as mediators. To explore mediation for your Arizona divorce matter, schedule a FREE 30-minute legal consultation by clicking here or by calling our office at 480.994.8824