BENEFITS OF MEDIATION
PEACE, HEALTH, & HONOR
Too many people equate Family Law with fighting and conflict, but it does not have to be that way. Good intentioned, intelligent people are increasingly choosing to resolve their Family Law matters with the assistance of Family Law Mediators. Family Law Mediators can minimize conflict, stress, and suffering that accompanies Family Law cases. Mediation is often the final opportunity to “do the right thing” before moving on.
Family Law mediation also creates a foundation for further productive and respectful interactions between parents so they can serve the best interests of their children. The bitterness, desire for revenge, and financial devastation that can be avoided by a collaborative approach to divorce is replaced by peaceful solutions. What began with love can be completed with dignity and respect.
PRESERVATION OF FAMILY RELATIONSHIPS
People involved in Family Law cases do not have to be enemies. In fact, they can remain friends. Conducted properly and without conflict, the Family Law mediation process can build trust and respect instead of destroying it.
They Family Law mediation process can build bridges instead of burning them.
The basis of our adversarial court system is the belief the parties are best served by hiring separate attorneys whose duty is to advocate for their respective clients. This approach often requires two expensive retainers, duplicate information gathering, back and forth e-mails, letters, and pleadings between the lawyers, and an adversarial information gathering process (e.g. subpoenas, depositions, interrogatories) that is designed to overcome a lack of cooperative effort.
The traditional Family Law litigation process often takes upwards of a year or more. Family Law mediations when pursued diligently and effectively should consistently result in final court orders before litigated cases are even ready to set for trial. Mediated Family Law settlements do not require waiting for a judge’s ruling (this can take up to 60 days), there are no continuances (postponements of trial dates), and appeals in mediated Family Law cases are extremely rare.
The parties’ own schedules decide the pace of Family Law mediation, not that of the courts. Mediation sessions at the Law Office of Keith A. Singer may take place as frequently as daily so long as they are productive. Keith offers a late morning session and an early afternoon session every weekday and on Sundays. When necessary, Keith will conduct mediations after regular work hours to accommodate inflexible work schedules. Since there are no court deadlines to meet, the parties decide how quickly or how slowly they wish to proceed.
The Law Office of Keith A. Singer is located at the Tanque Verde Place, just across the street from Udall Park in Tucson, Arizona. The office has been purposely designed to accommodate Family Law mediation. Lighting is fully adjustable from natural to bright. The atmosphere is calm, peaceful, and productive. Dress is “mediation casual.”
Lawyers and judges dominate the traditional Family Law case. Family Law mediation puts the power back into the hands of the parties. Keith’s style of mediation is more direct than passive, but he does not make any rulings, orders, or decisions. The parties to the mediation are in complete control at all times. The parties decide together what is right for themselves and their children. There is no pressure, coercion, threats, raised voices, anger, or fear. Nothing is settled until both parties agree the matter is settled.
COMMIT FROM THE OUTSET NOT TO FIGHT
The first step to resolving a Family Law case without fighting is a mutual commitment to resolve things peacefully and without resort to litigation and courts. This may sound simplistic but it is in my view a crucial prerequisite for a successful non-trial resolution.
The traditional, litigated Family Law case often begins with the filing and delivery of court papers by a process server. This immediately creates bitterness, resentment, mistrust, and stress. In uncontested Family Law cases, nothing is typically filed with the courts until the settlement is completely accomplished. As a result, the stresses and deadlines related to an ongoing court proceeding simply don’t exist.
The initial consultation is an opportunity for the parties to sit down together at the Law Office of Keith A. Singer for an introductory discussion about the case and the process. Prior to this first session, Keith will discuss with the parties the ethical implications of a Family Law mediation session conducted by a neutral, licensed, Arizona attorney. If either party is represented by an attorney, the attorney will need to provide consent beforehand.
The initial consultation is an opportunity to ask and receive answers to general questions, identify relevant issues, evaluate whether mediation or another form of Alternate Dispute Resolution is possible, and evaluate whether Keith’s further mediation services will be of benefit to the parties.
AGREEMENT TO MEDIATE
For those who wish to continue working with Keith to mediate their Family Law matter, he will ask that a comprehensive fee agreement to mediate be executed by each of the parties and approved by any involved legal counsel. A sample of that “contract” is included in this website, on the fees page.
Among other provisions, the agreement provides each party the opportunity to withdraw from mediation at any time. It confirms that nothing is final until a complete agreement is reached, reviewed by independent attorneys if applicable, and signed by the parties. The agreement also provides for confidentiality.
FURTHER MEDIATION SESSIONS
Mediation sessions may last anywhere from 1-3 hours per session except in rare situations when the parties undertake a half or full-day mediation. Lawyers representing the parties may be present if mutually agreed beforehand. There is no set number of sessions necessary to complete a mediated Family Law case.
Some cases will require 1-3 sessions to resolve all issues; some may require 10 sessions or more. If any of the parties determine at any time that no progress is being made or that the process has otherwise broken down (or for no reason at all), the parties may collectively or individually put an end to that mediation session or the entire process.
CUSTODY AND PARENTING TIME MEDIATION
Keith is pleased to work with parents to develop customized parenting plans for children. The Pima County Superior Court offers this type of mediation free through its Court of Conciliation upon the filing of a Family Law case involving child-related issues.
Custody and parenting time mediation with the Court of Conciliation or a private mediator is required before bringing a case before the Court for settlement or trial unless the parties submit their own parenting plan. Many people find that it is quicker, easier, and more convenient to develop the parenting plan by themselves or with The Law Office of Keith A. Singer, rather than waiting for the Court of Conciliation to schedule custody and parenting time mediation.
FINANCIAL INFORMATION GATHERING
At the outset of the mediation process Keith will provide the parties with the court-approved forms with which to inventory their assets and debts. Asset and debt division is not typically required in non-marital (paternity) cases, or in post-divorce matters.
As a neutral mediator, Keith cannot be an advocate for either party to obtain or protect information. It is up to the parties to provide complete, timely, and accurate financial and other disclosures. Failure to do so may result in a breakdown of the mediation process and may create a valid argument later on to set aside the parties’ settlement.
Arizona law provides that any assets or debts not divided in a divorce proceeding remain subject to division indefinitely. Keith’s role is to assist the parties to exchange such information as is necessary to accomplish a fair and final mediated resolution.
The parties are expected without unreasonable delay or argument to provide complete disclose of whatever information is reasonably requested. Keith will not employ subpoenas, depositions, interrogatories, or other discovery devices unless mutually requested by the parties, and then only with regard to information from third persons.
CALCULATING CHILD SUPPORT
Once a parenting plan is accomplished and adequate income and expense information is provided, Keith can prepare all necessary documents using the widely accepted Cassandra software to calculate child support, past due support and interest (if any), and expense sharing obligations pertaining to children.
SPOUSAL MAINTENANCE (ALIMONY)
In certain Family Law cases an order of Spousal Maintenance is appropriate. Keith will work with the parties so that they better understand the factors courts use to determine whether maintenance should be awarded, for what amount, and for what duration. The parties will discuss the options of “modifiable” and “non-modifiable” maintenance so that the parties may decide whether, if spousal maintenance is appropriate, such orders are appropriate and if so, how they should be structured.
No final orders or agreements pertaining to spousal maintenance should be signed or submitted to a court without review by an independent Family Law attorney representing each party, unless the parties decided otherwise.
ASSET AND DEBT DIVISION
After a general discussion of community property and if there are assets and debts to divide, Keith will work with the parties so that they may develop a fair, equitable, and reliable method of division as determined by the parties. Certain assets such as retirement accounts may require an outside expert to value and divide using so-called “Domestic Relations Orders.” In those cases Keith will assist the parties, if desired, to retain such experts and to manage them as needed.
If appropriate, Keith can prepare the necessary deeds and other documents to effectuate the parties’ financial settlement, subject to review and approval by independent counsel if the parties so desire.
Once a complete settlement is reached, a written settlement agreement is often prepared in mediation. Sometimes that step is unnecessary since the final court orders serve a similar purpose. Each party is of course urged, but not required, to have any final agreement or court orders reviewed by an independent attorney.
Independent review by a Family Law attorney is an important aspect of mediation, which will substantially increase the likelihood of enforceability. Without independent counsel, either party could later claim they should not be bound by the agreement for lack of independent counsel.
PREPARING AND FILING COURT PAPERWORK
Family Law mediation should typically result in final court orders. Once a final agreement is signed, the parties are free to prepare the final paperwork themselves, use a non-lawyer document preparer, have Keith prepare the final documents, or have one of their respective lawyers (if they have one) prepare and file the final documents. Arizona has developed a “Consent Decree” option for Divorces and Legal Separations. Consent Decrees may be submitted to the court without even having to appear personally before a judge. Keith is proud to say that all of my mediated Decrees are consent Decrees.
In the event additional issues arise over time, the parties are welcome to return for further mediation.
A common concern many people have when considering Family Law mediation is whether each party should have independent legal counsel. Keith does not require each party to the mediation have separate and independent counsel.
Parties are free to choose to handle their Family Law case by themselves. They can hire a neutral attorney/mediator. They can utilize a document preparer. They can each hire a separate lawyer. Or, they can employ a combination of the above options. However, Keith does urge each participant in a Family Law mediation have separate and independent counsel available to advocate for his or her interests and to review any final agreements and court documents.
You may ask, “Why hire Keith if he is urging us to pay separate lawyers to review and approve the settlement?”
The answer is that preparation or review of the final documents in a Family Law case is generally the least time consuming part of the process. This is especially true when the documents are prepared not to advocate for one party or the other (requiring back and forth negotiation between the lawyers) but to effectuate the parties’ agreement.
The vast majority of time and money in a Family Law case is spent in the initial education of the parties about Family Law and procedure, in the information gathering stage, the back and forth negotiation between the attorneys, in reviewing the legal documents with the clients, and especially in the preparation for and time spent in trials and related court hearings. When each party retains separate counsel to represent them in the initial stages of a Family Law case, duplicate efforts can result and the bills can quickly add up unnecessarily.
When Keith presents a Family Law settlement document package to independent counsel for final review, most of the work has already been done. The financial and other information has already been gathered and properly compiled by the attorney/mediator and the parties. The parties already have a strong base of knowledgeable regarding their case, the legal process, and the general body of applicable laws. The issues and problems have already been resolved to the satisfaction of the parties and put into proposed final orders.
Instead of spending thousands of dollars on separate independent counsel, very often only a session or two is required to review and address any concerns raised by independent counsel.
Even if one or the other independent counsel determines the settlement to be grossly inadequate or unfair, it is still more efficient and cost effective to attempt re-negotiation in a mediated setting than to engage separate counsel to commence the litigation process. In most cases, independent counsel’s objections can be addressed or overcome without unreasonable delay and expense.
As an experienced trial attorney, Keith is willing and more than capable to work directly with independent counsel, not as an adversary but as a neutral party, to understand and convey their objections to the parties and to work towards resolution.
Because Keith has no “axe to grind,” other than promoting fair, reasonable, efficient, and mutually acceptable settlement, there can be a higher degree of trust by everyone involved that he is only working for the sake of the mediation and not to assist either party or their counsel to gain an advantage.
Simply put, while a Family Law attorney/mediator is not a substitute for independent advocacy, a lot of time, money, duplicate effort, and conflict can be avoided by attempting mediation first.