Utilizing Mediation in Family Law Cases
Family law cases can be stressful and emotional. When the end of a relationship is involved, not to mention the lives of minor children, emotions are bound to get involved.
However, it is not always the best idea to take a case before a judge and put everyone through lengthy litigation. In fact, for many parties, mediation is an excellent alternative in resolving their disputes and coming up with a solution that works for everyone involved.
A family law case usually results in two different options: the parties take their dispute to court and allow the judge to decide or they work out a settlement in lieu of a hearing.
Mediation is one option available to parties who wish to work out an agreement outside of court. Many advantages exist for using this option to settle a case, although mediation may not always the best option for everyone.
What is Mediation?
The Arizona Rules of Family Law Procedure define mediation as a confidential and voluntary process where parties enter into private discussions with a neutral third-party mediator to resolve a dispute. Any issue in the case can be mediated, or all issues can be resolved through mediation.
Many times, the parties agree to mediate voluntarily, but courts also retain the authority to order mediation. Even if the court orders mediation, however, participation in the actual process is still voluntary. A mediator cannot force any party to come to an agreement.
The court can appoint a mediator, or the parties can come to an agreement on who will mediate the case. However, any agreement reached in mediation must comply with Arizona Rules of Family Law Procedure 69.
In addition, the parties must acknowledge that the agreement was reached and entered into voluntarily, without any threat or undue influence, and after a full disclosure of all relevant facts and information is made. They must further agree that the agreement is binding, is fair and equitable, and if minor children are involved, is in the best interests of the children.
When is Mediation not Recommended?
Circumstances do exist where mediation is not appropriate. For instance, if domestic violence is a part of the relationship, certain procedures need to be in place to protect the victim of the domestic violence. If the domestic violence in the relationship makes it inappropriate for the mediator to mediate the case, he or she is under an obligation to decline to mediate it.
What are the Benefits of Mediation?
Mediation is different from other forms of alternative dispute resolution in that the participation is voluntary, and the mediator has no authority to make an official ruling or decision on contested issues.
Arbitration is a different form of alternative dispute resolution where the third-party can make a binding ruling on these contested issues. The mediator’s role is to simply work with both parties in hopes of guiding them to coming to an agreement that is fair and equitable to all concerned.
One major benefit of mediation is confidentiality. Discussions that take place in mediation are confidential. The purpose of this protection is to encourage parties to be open and honest in their discussions without fear that what they say will be held against them later. If the mediation is not successful and the case goes to trial, statements made in mediation are not admissible, including settlement offers that are made.
Attorneys may be present with the parties during mediation, or the parties can participate without legal representation, working directly with the mediator. Many attorneys encourage their clients to participate in mediation because it is less costly given the amount of discovery and preparation that can lead up to trial.
Going through the trial process can also be a traumatic ordeal, especially testifying regarding the intimate details of the parties’ relationship. Mediation allows them to have these discussions privately behind closed doors and in a setting that is less confrontational than the courtroom.
In addition, mediation allows parties to be creative in putting together a resolution that works for all parties involved. One disadvantage to having a judge hear and decide the case is the parties have no say in what this decision will be. In fact, the parties are basically handing their lives over to a third-party who has no background knowledge or history on the family other than what has been presented in court.
Mediation gives parties a little more control over how everything is resolved instead which, to many, is a major benefit.
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If you need a strong advocate in your corner, it is important you contact us today to schedule a consultation to discuss your case. Contact us at (480) 300-6012.