Alternative dispute resolution (ADR) offers parties who have a disagreement a path to resolution outside of traditional civil litigation. In family law matters, one of the most common forms of ADR is divorce mediation. Divorcing couples who do not resolve their contested matters at an initial settlement conference are frequently referred to divorce mediation to negotiate an agreement, but some courts may recommend another method of dispute resolution, or the spouses may seek alternatives on their own. An experienced attorney at Sullivan Shick may be able to guide you through the options that apply to your situation in a private consultation. Call our Mesa location (480) 605-4880 or our Glendale location (623) 915-0944 today to book your appointment with a member of our team.
What Is Dispute Resolution in Divorce?
While most spouses are understandably inclined to think of their marriages primarily in terms of their personal and emotional significance, to the courts a marriage is a legal structure affecting property rights, parental responsibilities, and more. Each issue that is treated as an automatically shared right or responsibility during a couple’s marriage must be explicitly addressed in the partners’ divorce – either by an agreement between the parties that is affirmed by the judge in the order granting their divorce, or by the judge’s own decision, similarly issued as part of the court’s final order.
What Is Alternative Dispute Resolution?
“Alternative dispute resolution” refers to a group of several methods for resolving disagreements that get their collective name from the fact that they offer alternatives to submitting a conflict for adjudication by a civil court. Besides mediation, ADR also covers a number of other options. Some of these are relatively standard across most jurisdictions in the United States, while the legal validity of agreements under the others may vary from state to state.
In Arizona, the forms of alternative dispute resolution recognized under Rule 67 of the Rules of Family Law Procedure are:
- Settlement conference (usually handled through the court)
- Private mediation (sought independently or via motion)
- “Conciliation” court services (requested by one of the parties to a divorce proceeding)
- Family law arbitration (whose outcomes are generally treated as similar to contracts)
- Collaborative law (carried out according to a specific process that avoids court
Despite this breadth of possibility, mediation tends to be the most commonly employed in family law cases across the state.
Family Law Arbitration
Arbitration is in some respects the form of alternative dispute resolution the most closely similar to traditional litigation. During arbitration, both sides will present arguments in favor of their own positions, and the outcome of their dispute will be decided by a neutral third party, the arbiter, who listens to both parties’ evidence and issues a decision, much as the judge might do in a bench trial. Arbitration in general is typically cheaper and faster than litigation, however, and unlike a court case does not usually leave open the option of an appeal by either party, as it is common for the arbitration process to begin with the parties signing an agreement consenting to be bound by the arbiter’s decision.
Arizona has adopted the Uniform Family Law Arbitration Rule, which applies certain specific parameters to the types of issues over which parties may raise challenges after arbitration. Of particular interest, ARFLP 67.2 identifies special provisions regarding post-agreement disputes involving parenting time and legal decision-making responsibilities – a common source of ongoing tensions in family law matters. On the whole, however, the relative inflexibility of family law arbitration makes it one of the less-popular choices for spouses who elect to pursue ADR independent of a court order.
Mediation
Mediation is by far the most common type of alternative dispute resolution used in family law cases across the United States. Although mediation is certainly used in other types of law, the judges in family law cases frequently refer divorcing spouses and co-parents embroiled in conflicts over child custody or decision-making to mediation because this method especially emphasizes finding common ground in spite of competing interests – an approach that can often serve to lower the tensions that characterize family law cases.
Whether mediation is ordered by an Arizona family law judge or sought independently by the parties involved in a dispute, the mediation process will involve the services of a third party neutral. As is common in ADR, this “neutral” will typically be a professional trained in the dispute resolution method employed (in this case, mediation). Unlike an arbiter, however, a mediator will not issue a decision by which the parties must abide. Instead, the role of the neutral in divorce mediation is to establish a safe environment for confidential negotiations, and ask questions as needed in order to help the parties identify possible compromises that might help them to structure practical solutions to some or all of the issues that must be decided before an Arizona court can grant their divorce.
Collaboration
Collaborative law is an approach that has been steadily gaining ground for several years. The American Bar Association (ABA) explains that the approach was pioneered by a family law attorney who felt so strongly about the benefits of resolving family matters out of court that she would resign as counsel if her divorce clients insisted on taking their case to litigation.
Collaborative Law vs. Divorce Mediation
Collaborative law shares in common with mediation an emphasis on finding points of agreement from which to build practical solutions, often via a series of negotiated compromises. Unlike mediation, however, collaborative law is one of the relatively few types of ADR that do not involve the services of a neutral third party. Instead, in the collaborative divorce process as recognized in Arizona, both parties typically retain their own attorneys or “collaborative legal paraprofessionals” trained in the specific elements of collaborative law, under the terms of ARFLP Rule 67.1. These professionals are prohibited from representing their collaborative clients in any future litigation related to the same matter addressed in the collaborative law process. An attorney at Sullivan Shick experienced in collaborative law practice may be able to explain further in a private consultation.
Legal Representation in the Collaborative Law Process
The ABA refers to the client-attorney relationship in collaborative law as a “limited-purpose retention,” in which each attorney assists their client in pursuing a resolution acceptable to that client. Generally speaking, in most legal matters hiring an attorney is optional, even though it is commonly recommended; however, Arizona’s court rules do not address the possibility of pro se representation for collaborative law procedures, so you may wish to schedule a consultation with an attorney prior to entering the process, if you have questions about the technicalities of representing yourself.
Alternative Dispute Resolution in Arizona Family Law
Individuals approaching divorce who choose to pursue a form of alternative dispute resolution on their own in hopes of achieving an uncontested divorce have a number of options from which to choose. While arbitration is among the most widely familiar ADR methods thanks to its frequent appearance in contracts and end-user agreements, the limited recourse for further appeal makes this an uncommon voluntary choice for most divorcing spouses. This still leaves spouses with the opportunity to seek divorce mediation on their own, resolve their dispute at the court-scheduled settlement conference, request conciliation court services if they believe there is hope of repairing the marriage, or explore the problem-solving potential of the collaborative law process. An experienced Arizona family law attorney may be able to guide you through your options for resolving disputed matters with your former partner, or for addressing any dispute resolution requirements implemented by the court. Consider scheduling a consultation with Sullivan Shick today by calling our Mesa location (480) 605-4880 or our Glendale location (623) 915-0944.