Working Through Family Issues with Alternative Dispute Resolution, Part I – Mediation and Settlement

We use several different forms of Alternative Dispute Resolution (ADR) to try to resolve issues in family law cases prior to trial. When family matters are settled without the necessity of a trial, the parties typically save money and wear and tear on their emotions. Although resolving every issue before a trial is not always possible, many issues can be addressed successfully in advance, removing those matters from the trial agenda. Here are four forms of motions used in Arizona to request ADR: 1. Motion for Mediation.2. Motion for ADR Settlement Conference.3. Motion for Parenting Conference.4. Motion for Custody Evaluation. MOTION FOR MEDIATIONMediation is a confidential ADR process. The parties’ attorneys don’t attend the mediation; in fact what is discussed during the session is not divulged to anyone, not even to the judge. Any agreement reached is documented by the mediator, who then forwards the agreement to the judge to sign as an order.Arizona’s Program.Here’s how to make use the family court’s mediation program, available at nominal cost to the parties. A Motion for Mediation is filed requesting that the court order a conference with a mediator over child custody and access issues. Ideally, this ADR process will result in agreement on some, or all, child custody issues in contention. Whenever possible, the mediator assists the parents in reaching agreements that benefit them both and their children – a win-win situation. Because it takes about two months to schedule the mediation through family court conciliation services, it’s a good idea to file the motion early to set the appointment and avoid unnecessary delays.Private Mediation.The parties may choose to hire a private mediator, which usually saves time compared to the two-month wait on the court’s program. The private mediator also assists the parties in reaching agreements, even on issues that might seem non-negotiable. With private mediation, any issue can be presented for mediation, from property distribution to the child’s daycare provider. That really sets private mediation apart from the court’s mediation program which is focused only on parenting issues. Private mediators generally charge by the hour -- expect to pay $250 an hour or more for this professional service.For a good example of how helpful mediation really can be, take a look at our blog about an Arizona couple who used mediation to avoid an ugly divorce. MOTION FOR ADR SETTLEMENT CONFERENCEWhen parties don’t reach agreement on financial matters, then they may use private mediation to attempt settlement on those issues. A party might also consider filing a Motion for ADR Settlement Conference. As a quick note, when child custody issues are still remaining in the case, we usually recommend private mediation. But it is possible to combine custody issues with the financial issues presented in the ADR settlement conference. Not Binding.A commissioner or judge pro tem is appointed to oversee the settlement conference. He or she gives an opinion on the likelihood of each party’s success, given their respective positions on the issues. (The judge assigned to the case isn’t involved in the settlement conference.) The commissioner’s or judge pro tem’s opinion isn’t binding, but it is a powerful recommendation. Needless to say, this straightforward advice is sometimes a “wake up” call as to the legal merits of each party’s position on the issues. Breaking Through. The ADR settlement conference may be the last opportunity the parties have to attempt settlement before trial. The conference is very useful in resolving cases. It gives everyone a fresh look at the legal issues in the case through the learned eyes of the commissioner or judge pro tem. In our practice, we’ve seen this lead to breakthroughs in negotiations between the parties.ADR settlement conferences have been used successfully in settling many family law cases. When settlement results, the parties enter into a binding agreement. After that, only the consent decree and supporting pleadings need to be submitted. There are some expenses involved with these ADR conferences, as the attorneys must prepare their settlement memorandums and also appear at the conference. When compared to a trial, though, the settlement conference is usually quite cost-effective.  MOTION FOR CUSTODY EVALUATIONOne of the primary differences between mediation and a custody evaluation is confidentiality. Mediation, which is confidential, involves a neutral mediator who hears each parent’s case and assists the parties in reaching a voluntary agreement -- sometimes the parents reach agreement, and sometimes they don’t. In contrast, custody evaluations are not confidential -- the evaluator reports his or her recommendations to the judge in the family law case.Custody Evaluation. By filing a Motion for Custody Evaluation, a party requests that the court appoint a child custody evaluator to interview the parties, evaluate each parent's abilities, and make recommendations. The court is likely to grant this motion whenever there are custody and parenting time disputes in the case. When the motion is granted, a private child custody evaluator, usually a child psychologist, is selected and appointed from an approved list of mental health professionals.Report and Recommendations.Custody evaluations can be quite in depth with both parties meeting with the evaluator on two or three occasions, sometimes with the child. The evaluator interviews each party, and observes how each party interacts with their child. Depending on the circumstances of the particular case, the evaluator may also interview other family members, review records, and more, resulting in a detailed written report submitted to the court.A custody evaluation can take three to five months to complete and may cost between $3,000 and $7,500, depending upon the psychologist nominated by the parties. The court may order one party to bear the entire evaluation fee, or the court may order the parties to share the expense between them.MOTION FOR PARENTING CONFERENCEAlthough the parties’ attorneys are not permitted to attend the parenting conference, matters raised in the conference may be addressed by the court. In that regard, the conference is not confidential, which sets it apart from mediation.Arizona’s Program.When the parties are unable to reach agreements over child custody and parenting time through mediation, either party may request a parenting conference. The purpose of the conference is to assist the court in determining what is in the best interests of the child.To make use of the family court’s parenting conference program, a party files a Motion for Parenting Conference. This requests that the court schedule a parenting conference with a court-appointed conciliator. The conciliator makes recommendations on the child’s living arrangements, parenting time, and parental decision-making responsibility.Best Interests.When the parties do reach agreement on some or all of the parenting issues in the best interests of the child, then the conciliator may recommend the parents’ agreement to the court. Any areas that concern the conciliator are addressed, along with recommendations intended to resolve the remaining issues. The conciliator submits a written report to the court with findings and conclusions. The report’s information helps the court determine orders over custody and parenting time. Typically, the conciliator’s report includes the following content:  A.  Referral.B.  Background.C.  Areas of agreement.D.  Issues in dispute.E.  Summary of parent concerns.F.  Impressions and assessments.G.  Conclusions and recommendations.Once the Motion for Parenting Conference is filed, it takes about two months to schedule with family court conciliation services. As with mediation, the other court-ordered custody program option, there is only a nominal charge for the service.