AZ Divorce Mediation Rules and Procedures
In mediation, time is money. Recognizing this, we invest about 15 or 20 minutes in the early stages of mediation going over each of the Rules and Procedures which govern Situational™ mediation. Doing this literally saves hours because it provides a map for the mediation. Just as on a road trip, a map helps to get us there as quickly, inexpensively, and smoothly as possible in terms of stress and strain. Taking time to explain the Rules and Procedures is an investment because the money spent during this time is truly an investment in the future. Without this, the mediation is apt to stray off course and unnecessary time and expense could result.
In many areas of our lives, we have rules and procedures aimed at ensuring safety and reducing anxiety. For example, just as passengers on an airplane are instructed as to policies regarding seatbelts and emergency exits, participants in mediation are informed about the use of legal counsel, private sessions, etc.
The goal of this website is to help people understand the Situational™ approach to mediation, not to explain the many different procedures and time requirements of courts in each state1. However, an explanation of court procedures may take place during mediation itself.
Below is an explanation of the Rules and Procedures for divorcing clients.
I. The Mediator facilitates communications and negotiations, enabling each of the parties to discuss options and make informed decisions. The mediator does not function as a judge, attorney, or therapist. The parties are encouraged to seek independent legal advice before execution of a mediated agreement or at any time during the mediation process.
- This paragraph, in short, is about making Informed Decisions. It’s not the mediator’s job to make any decisions for you. The essence of his/her job is to try as best as possible, using his/her head and senses, to assist participants in making fully informed decisions.
- The mediator helps you deal with the emotions that are likely to surface during mediation, so that you communicate and negotiate as effectively as possible and stay on course toward your goals.
- The mediator will offer options and alternatives, different ways of resolving whatever issues there are. In this way, you can make fully informed decisions.
- Your mediator will provide legal, financial and tax information, but will not give legal advice as an attorney would. The mediator will provide you this information for the sole purpose of letting you compare it to what you think is fair. In this way, you can make fully informed decisions.
- There are two reasons participants might want to use legal counsel during mediation to make informed decisions. The first is if participants have any doubt at any time about a particular issue. The second is when we are finished with mediation, participants may make the decision to have legal counsel review the agreement.
II. The parties begin by meeting in joint session with the Mediator. Excluding administrative matters such as scheduling of appointments, all communications are made in presence of all parties with the exception that the mediator may from time-to-time consider it helpful to meet briefly (caucus) with each of the parties separately.
- Mediators spend about 95% of their time in joint session, but don’t hesitate to meet privately with participants whenever they sense that doing so would provide greater opportunities for empathy, humility, and compassion, or would otherwise help participants reach agreement.
- Private sessions may be appropriate when the mediator senses that participants are stuck on a particular issue, or that one participant hasn’t fully disclosed all of the information needed for the other to make a fully informed decision. Private sessions can also be useful to intervene on repeated or extreme outbursts of emotion. Private sessions often provide the additional comfort and safety needed for participants to disclose uncomfortable or embarrassing information.
- Private sessions do not guarantee confidentiality from the other participant. If a participant privately tells the mediator something that the mediator believes is important for the other to know, he or she will feel at liberty to appropriately disclose it. Secrecy creates fear and hinders the mediation.
III. An atmosphere of mutual respect should prevail during the mediation. The parties should address each other by name, and refrain from interrupting, criticizing, intimidating, or otherwise detracting from this atmosphere.
- In ordinary conversation, use of pronouns such as “he” or “she” is usually innocuous. However, in situations of conflict, these pronouns are frequently used to indirectly communicate gender-biased, negative, or hostile messages. Participants may be unaware that they are sending these indirect messages, but they definitely detract from an attitude of mutual respect.
- Participants are asked to also refer to the mediator by first name. It is the situational mediator’s desire to approach participants with humility; this quality is most likely to occur when people are together as equals.
- In the spirit of mutual respect, Situational mediators always ask for permission to inquire about personal matters—mediators never want to presume authority.
IV. The parties agree that the best interest of minor children is of primary importance.
- The mediator gives, and asks the participants to give, the children’s interests top priority. One of the major benefits of mediation is helping people avoid the hostility and destructiveness of the legal system. This is particularly true with regard to the children of divorcing couples. Mediators can help save children from the additional pain and suffering that would have been likely if their parents had chosen to litigate instead of mediate.
V. The mediator may encourage the parties to obtain expert advice concerning taxes, appraisals, financial planning, and mental health.
- The mediator will have a readily available list of trustworthy, impartial “mediation friendly” attorneys and other experts such as tax accountants, real estate appraisers, psychologists and others.
- Participants are not obligated to consult with any of them, but they are available if and when participants feel the need for reassurance, additional information, answers to complex questions or advice.
VI. The parties agree to provide all information and documents required for the Mediator to understand the issues presented.
- The willingness to provide all the information and documents needed by each participant to make fully informed decisions is an essential part of the mediation process.
- By cooperating with these Rules and Procedures participants are agreeing to be open, honest, and fully disclosing of any and all information needed to make fully informed decisions (financial statements and tax returns, etc.)
VII. Anything said or any documents prepared for mediation are strictly confidential. The parties agree to maintain this confidentiality during mediation and also not to subpoena the records or representatives of Out-of-Court Solutions in any pending or future legal action or proceeding.
- In Arizona (as in many states) anything said or written during mediation is strictly confidential, meaning that if participants were not able to reach full agreement through mediation, nothing that went on here could be used later on in court.
VIII. The Mediator may discuss the parties’ mediation process with any attorney retained by any party as individual legal counsel or any labor organization. The Mediator will provide copies of correspondence, draft agreements, and written documentation to either of these representatives at the parties’ request.
- The overall purpose of this paragraph is to give mediating couples protections similar to those commonly granted by courts upon the filing of an action for dissolution of marriage (i.e., divorce). Mediation protections are contractual rather than court ordered. Nonetheless, rarely have mediation participants breached their agreement to abide by this rule. On the contrary, Out of Court Solutions mediators’ experience is that once people make these kinds of agreements, they have no trouble committing to them.
IX. The Mediator may suspend or terminate the process upon concluding that a party is unable or unwilling to participate meaningfully, or that agreement is unlikely.
- Referred to colloquially as the ‘escape clause,’ this paragraphs states that if someone were to continually violate one or more of these Rules and Procedures, the mediator reserves the right to either suspend or terminate the mediation. Out of Court Solutions has only rarely had to invoke this clause.
- Once the mediator finishes explaining the Rules and Procedures, he/she asks both participants to sign an original. Then the mediator signs it, and makes a copy for each of them. Regardless of whether the dispute is between divorcing parties, or modified for business and contract mediation, starting out with a road map of Rules and Procedures has proven highly effective in resolving conflicts quickly, inexpensively, and smoothly.
1 The American Bar Association provides tables summarizing child support guidelines in all 50 states at www.americanbar.org