Ontario Canada now requires divorcing couples to attend a mandatory mediation information session before they may litigate their case.  In the session, the parties learn about why they would want to mediate their divorce, instead of litigate it.  This article explores why such sessions are a good idea, and whether Arizona should adopt a similar policy.

What is mediation?  Mediation is a process whereby a mediator, who is neutral, helps people in conflict reach agreements without the necessity of litigation.  A mediator does not issue decisions or give legal advice to one side or the other.  A mediator instead uses conflict resolution skills and knowledge of the legal process to help parties reach their own binding agreements.   The mediator helps the parties focus on the relevant issues and reach consensus.

Why is mediation important in divorces?  Divorces can destroy people and families, both financially and otherwise.  Divorces are expensive, emotionally draining and often damaging to any children involved.  Further, the Court has a large amount of discretion in its rulings, so parties are often gambling with their and their children’s futures by going to Court.  Mediation is a highly successful way to avoid the cost, time and risk of litigation.  Further, the Courts are clogged as it is, and mediation will lower the burden on the Court system.

Why not just make mediation mandatory in Arizona? Some courts simply make mediation mandatory, rather than make the information seminar mandatory.  The benefits of making mediation voluntary are:  (1) people are more likely to be committed to making the mediation work if they choose it (rather than to have it forced upon them; and (2) in cases of domestic violence, the Court does not want to force a victim, who is not in an equal position of power as his/her spouse, to mediate.   On the flip side, the benefit of mandatory mediation is that mediation tends to work even for those reluctant to mediate (unless they attend mediation in bad faith), so more people will end up settling in mediation when it is mandatory.  The Court could always include a provision in its mandatory mediation policy, allowing victims of abuse to opt out of the program.

Is this something Arizona Courts should implement?  Either the mandatory mediation information session or the mandatory mediation would greatly benefit Arizona’s citizens and courts for all of the reasons set forth above.  The benefits of mediation are not speculative; mediation is being used across the globe to successfully end conflict.  Why wouldn’t Arizona want to implement a program that helps parties end their divorces as amicably and inexpensively as possible?  Why wouldn’t this state want its children to grow up without the scars caused by a contentious divorce?

Alona M. Gottfried is a family law mediator and attorney in Arizona.  If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions. 

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

I finally caught the first two episodes of the television program called “Fairly Legal.”  The show is about a mediator, and, as a mediator, I was interested to see if the show accurately portrayed my profession.  Just as viewers of “CSI” expect crime professionals to solve every murder in one hour or less (often based on a tiny piece of fabric or bug that places the murderer at a specific location in the world), viewers of “Fairly Legal” may base expectations about mediation on this show.

In the show, the mediator, Kate Reed, is a former lawyer who has determined that mediation is superior to litigation as a means to achieve fair results.  We first see her mediation skills displayed in a scene where she prevents a robbery from becoming violent.  She asked what the robber wanted ($500.00).  She then helped the robber determine what he really wanted (beef jerky and beer) by asking him carefully posed questions.  This process is called separating positions from interests.  When the robber agreed that what he really wanted could be satisfied by something less than his original demand, the mediator was able to negotiate a resolution at minimal cost to the store owner.  While mediators are not usually put in the position of mediating when one party has a gun (that would be considered a “power imbalance”), and one wonders what Kate would have done if the robber would have wanted drugs instead of beef jerky, the scene did show off some actual mediation skills.

However, as the show continued, it became clear that Kate was more of a ‘really good problem solver’ than a mediator.  While mediators help parties find their own solutions, Kate often came up with her own brilliant solutions to the delight of the mediation participants.  In reality, people are more likely to “own” a solution and abide by an agreement if they generate the idea themselves.  It is the same concept featured in the movie “Inception.”  Leonardo DeCaprio’s character went so far as to plant ideas in people’s brains, so they would think the ideas were their own and follow through.  Mediators’ methods of helping people generate reasonable solutions are a little more subtle.  But, the point is:  people do not like to be told what to do.  Judges tell people what to do.

Second, Kate was an expert investigator who tracked down facts.  Mediators are not fact finders.  While mediators help participants exchange enough facts to allow settlement to occur, we are not running around gathering evidence.  Kate actually achieved one resolution by finding an incriminating photograph and blackmailing a disputant into doing the right thing.

While “Fairly Legal” may give people inaccurate expectations about mediators, my view is that at least the show is bringing mediation into the public’s consciousness.  Most people still do not know mediation exists and, therefore, too many people unnecessarily suffer through litigation or unresolved conflict. “Fairly Legal” shows that mediation can be used to quickly and fairly end conflict.

Alona M. Gottfried is a mediator and attorney in Arizona.  If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

In AZ reconciliation mediations – mediations to help couples preserve their relationship – parties often ask me for tips to help minimize conflicts in the

Reconciliation Mediation in Arizona

marriage/partnership. The following are some tips to help disputes from getting out of hand.

1. What are you more committed to? When you have a complaint with your spouse, first decide: are you more committed to your marriage or being right? Many couples initiate an argument with the goal of getting their partner to admit the error of his/her ways and apologize. People rarely apologize, and people rarely admit they are wrong when they feel cornered. Therefore, if getting the other party to admit defeat is your goal, your efforts may only damage your relationship. If you are committed to your relationship more than you are committed to being right, spend some time thinking about what practical outcome you would really like and whether a conversation is necessary and useful. Depending on the problem, you may decide to let some concerns go – even if your spouse is wrong.

2. Choose your battles. Some issues are not worth the fight. Some of your spouse’s habits and personality traits are worth putting up with for the sake of a peaceful marriage. If you are the only one who cleans the house, despite your consistent complaints, maybe cleaning the house is a worthwhile cost in exchange for the benefit of being married to someone you love. Or maybe there is another option, like hiring a maid. Maybe it is worth accepting your partner’s less desirable traits in consideration or his/her many good traits.

3. Phrase your concern in a way that is most likely to elicit a positive response. People who feel attacked rarely respond positively. Try to “pitch” your concern in a way that does not come across as a personal attack and that sounds like it is an issue that you both can overcome together. Ask questions and solicit mutually agreeable solutions. Think about which of the following methods is most likely to illicit positive change:

a. “You are constantly wasting money! With the rate you are going, I will never be able to retire!” Or:

b. “Do you think we can do a better job of saving money? What suggestions do you have?”

It may also be helpful to explain how you feel about certain things using “I” statements and without making assumptions. For example: “I feel slighted when you are constantly taking phone calls when we are together” instead of: “You are always on the phone – you love your clients more than me!”

4. Listen. Few people actually listen when another person talks. We assume we know what the other person is going to say and turn off our brain while the other person talks. In the alternative, we format our response while the other person is talking, thereby missing the communication. Practice active listening. Repeat your understanding of what your spouse said to make sure you understood it. Ask clarifying questions. Ask your spouse to state what he/she understood you said as well. Often, people just want you to hear what they have to say and understand them, and that is enough to resolve the issue.

5. Select the right time to have the discussion. If you or your spouse is agitated, it may be best to delay the conversation to a time that you both are calm. When angry, we are more likely to push buttons, bring up old disagreements and otherwise approach the dispute in a way that is going to only escalate conflict.

6. Be generous. Marriage/relationships are not 50/50 propositions, where each party must meet each other half way. Successful marriages are those in which each party gives 100 percent. Choose to be generous. Give compliments. Take on more of the responsibility. Remember that this is the person you love, and generosity begets generosity. It will pay dividends in the end. Even if it doesn’t, you will know you gave your all to make your relationship work.

7. Fight clean. Create ground rules at a time you are not in conflict. For example, agree that, no matter how angry or upset you are: no threats, no button pushing, no bringing up irrelevant past conflicts and no name calling. Treat each other with respect. Do not talk to your spouse in a manner that you would not talk to your boss (or someone that you love and/or respect). Whatever you are fighting about – remember your ultimate commitment and goals and act accordingly.

8. Mediate. If you cannot reach consensus, it is often helpful to have a neutral third party (a mediator) help. The mediator can help couples establish ground rules, discuss issues in an effective manner, and commit any agreements to writing, if the parties believe a written agreement would be helpful.

Alona M. Gottfried is a family law mediator and attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com. This is a general interest article only and is not intended to be legal advice or counseling advice. See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC

8160 E. Butherus Dr., Suite #7

Scottsdale, AZ 85260

There are so many reasons to mediate your dispute, rather than litigate it. Below are the reasons environmentally aware people would want to mediate:

Mediation vs. Litigation

1. You will save trees.  Litigation often requires a lot of paper.  I have had litigated cases that take up four banker boxes or more of papers.  What is written on all of these pages?  There are: 

a. Motions, responses to motions and replies to motions.  During litigation, the parties can file motions requesting such things as: sanctions, temporary orders, orders compelling compliance with orders, orders for experts and orders to limit evidence at trial. 

b. Letters between counsel or parties.  Some cases seem to require an exchange of correspondence almost every week.  In letters, attorneys or parties make accusations, seek documents or information or exchange proposals.

c. Documents, documents, documents.  To win a case, one generally needs proof in the form of written documentation.  Litigants often have to subpoena records and scour their own records to find documents.  A litigant has a duty to exchange relevant documents with the other side.  It is common practice to make a copy of all relevant documents for the other party or parties.  Further, a litigant has to make another copy to mark as exhibits for trial and another copy to provide to the Judge.  There are literally thousands of pages that get exchanged in many cases. 

With mediation, there is very little paper used.  Mediation facilitates the prompt and easy exchange of information and settlement offers because the parties are in close proximity (the same room or office) and are choosing to work together amicably toward a resolution.    Because mediation allows for the prompt resolution of a matter, there is not even time to amass that kind of waste of paper.

2. You will reduce your gas usage.  With mediation, the matter can often be finalized in one or two sessions.  By contrast, litigants often have to drive to and from court multiple times – for status conferences, hearings and trial.  Litigants also have to travel to and from their lawyers’ offices and sometimes their experts’ offices as well.

To limit your carbon footprint (and limit your stress, cost and risk), mediation is the smart choice.

Alona M. Gottfried is a mediator and attorney in Arizona.  If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions.

Mediation works best when both parties come in with the right mindset.  The mediator will guide you in this process, but there are things you can do that will help make your mediation successful:

1. Be respectful. It makes the mediation a lot more pleasant, and it facilitates open communication that is more likely to result in settlement.  Mediation works when both parties are willing to listen and understand the other’s interests and needs.
2. Be reasonable. Make and consider offers that are reasonable.  Taking extreme or unreasonable positions, or positions intended just to incite the other person, is counterproductive.

3. Be settlement-oriented in your speech. Communicate what you want without making accusations.  Acrimonious speech and conduct (including body language) can delay or prevent settlement.  It is in your interest to say things in a manner that will convince the other person that what you want is reasonable and mutually beneficial.
4. Be prepared. If you know certain information is necessary before you can settle, try to obtain that information before the mediation.
5. Be flexible and forward thinking. Be willing to explore new ideas, and leave past conflicts behind you.
6. Be generous. A little generosity goes a long way, and it encourages the same behavior in others.  Look for consensus wherever you may find it.  If an apology will help the other person move forward, consider giving it.
7. Be positive and patient. Mediations are usually successful.  However, settlement often requires hard work, a positive outlook and time.

Alona M. Gottfried is a mediator and attorney in Arizona.  If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions.

What Do You Do If You Are Mediating Your Arizona Divorce , But You Think That Your Spouse May Have  Hidden Assets?

Some parties to a divorce think that the other party has hidden assets.  It is true that people can, and undoubtedly have, successfully hidden assets before, whether involved in a litigated or mediated case.  Mediation can address complex issues, like hidden assets.

At times, it is just a lack of information about the family finances that renders parties suspicious.  An open discussion and a review of documentation in mediation often makes a difference.

Some ways to address the situation in mediation include:
•    Listing assets.  To ensure transparency, the mediator generally requires both parties to list all of the assets before the mediation begins.  That list includes real property, financial accounts, vehicles, retirement accounts and businesses.   The parties exchange this information.

•    Requesting documentation from the other person.    Once both parties know what assets exist, they can look at bank records and other financial records to understand the situation.

•    Retaining an expert to review the financial records.  A financial expert can help determine if there are hidden assets.  Especially where the finances are complex, there is nothing wrong with involving an expert in the mediation process to assist.  The mediator can generally refer the parties to financial professionals.

•    Adding an avowal in the binding mediated agreement from the other party that there are no other assets than those disclosed.     Such avowals often give the questioning party some sense of security that they are not leaving property on the table.

•    Adding a clause in the mediated agreement that addresses assets found after the divorce.  For example, if a hidden asset is discovered, the parties can agree that it will belong to the other party, in whole or in part.  The parties can also agree that the other party has to pay any mediation or attorney’s fees and costs related to mediation or litigation regarding any assets discovered after the divorce.

Simmons & Gottfried, PLLC
a Professional Limited Liability Company
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

When couples accrue property during the Arizona marriage in any way other than gift or inheritance(community property), they need an effective manner to divide that property during the divorce.   Arizona law requires an “equitable” (near equal) division of community property.  However, the Court generally sanctions any reasonable division, and mediation gives the parties more of an opportunity to get creative in the division.  Further, mediation offers a calm and amicable environment to discuss these complex issues.   In mediation, both parties make a list of all of the assets, and the parties discuss an agreeable division of all property with the assistance of the mediator.

Real Property.  The parties generally decide to either sell the house, allow it to go into foreclosure (an increasingly popular option), or allow one party to keep the house.  When one party keeps the house, that party usually arranges to refinance the house within a specific period of time.  Where there is equity in the house, the equity can be divided through cash, or by giving the other party more of the remaining property.   Within the mediation process, the parties can agree to an appraisal to properly determine the value of the house.  Appraisals can also be used to determine the value of other property.

Vehicles.  Parties tend to keep the vehicle that he/she traditionally drove.  Sometimes, one vehicle is worth more than the other, and there can be an offset or a payout to equalize the values.  Parties can get bluebook values for their vehicles at: www.kbb.com.  In some cases, the parties have to agree to cooperate to transfer title or refinance the loan on the vehicle.

Retirement Accounts.  If the parties do not have retirement accounts of near equal value, they generally retain a pension attorney to draft and submit a Qualified Domestic Relations Order (QDRO).  This Order allows the financial institutions to divide the community’s portion of the account without penalties and without creating a taxable event.  The parties select a pension attorney in mediation, and they also address how the pension attorney’s fees will be paid.
Financial Accounts.  Parties discuss in mediation how to divide accounts in an equitable manner.  The parties generally also discuss which accounts to close.
Businesses.  If the business is a community business, the parties can either continue to jointly own the business, or one party can buy the other party out.  If the parties cannot agree to a value for the business, the parties can jointly select a business appraiser to provide an estimated value.

Personal property.  There are different techniques for dividing furniture, electronic equipment, etc. accrued during the marriage.  For example, one party can divide all of the property into two lists and let the other party decide which list he/she wants.  Another technique is to simply go down a master list and take turns picking items.  The mediator can regulate the process and ensure that it is as pleasant as possible.

Separate assets.  There are situations where a party will have an interest in the other party’s separate assets (assets received prior to marriage or through gift or inheritance).  These issues can also be resolved in mediation.

Simmons & Gottfried, PLLC
a Professional Limited Liability Company
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

Generally there are  three types of mediation.  These would include Evaluative, Facilitative and Transformative Mediation.

What is Evaluative Mediation?

Evaluative mediation is a process that is based on using settlement conferences that are run by judges.  Attorneys will normally work with the court to select the mediator and are active participants in the mediation process.  Typically the parties are most often present at the mediation however the mediator may meet with the attorneys alone as well as with the parties and their attorneys together.  The role of the evaluative mediator is to evaluate the case and to point out the strength and or weaknesses of the case.  They will also try to predict what a judge or jury would be most likely to decide.  An Evaluative Mediator may make recommendations to the parties regarding getting the issue resolved.

What is Transformative Mediation?

Transformative mediation is probably one of the newest forms of mediation.  Its goal is is to transform the relationship that exists between the parties during the mediation.  In transformative mediation, the parties structure both the process and the outcomes of the mediation.  The role of the mediator is to follow the parties lead.

What is Facilitative Mediation?

Facilitative mediation came along during the time of volunteers who handled dispute resolutions.  Typically the volunteer did not need to have expertise concerning the are of the dispute in question.  Most often in this type of mediation, no attorney was present.  It is up to the mediator to structure a process to assist the parties in reaching a resolution.  The mediator does not make recommendations and leaves it up to the parties to work out the details.  Attorneys can be present but it is most desired that the parties have most of the input.

If you are considering hiring a mediator in the metro Phoenix Arizona area to settle a dispute or divorce please feel free to contact Alona M. Gottfried at 480-998-1500.

Simmons & Gottfried, PLLC
a Professional Limited Liability Company
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

You have decided that mediation is the best route to resolve your dispute.  Now what?  All parties to a dispute must agree to mediate, as it is a voluntary process.  Therefore, your goal is now to convince the other party or parties that mediation is in their best interests as well.  The easiest way to do this is to print out information for the other party about the benefits of mediation, or simply direct the party to AZMediator.com.  This writer offers free mediation consultations that both parties can attend together or separately.  At the consultation, the parties and mediator will discuss the goals and process of mediation, and the mediatior will answer any questions.  The parties can set a date for the mediation at the time of the consultation.

If the other party is resistent to mediation, you may want to use some variation of the following script:  I would like to resolve our disagreement in a manner that is time efficient, cost effective and positive.  I have researched mediation on line, and I believe it will provide us both with what we need.  A neutral, skilled party will sit with us and help us reach an agreement.  We can commit our agreements to writing, and it can be binding, just like in Court.  Most mediations are successful, so we have nothing to lose  and everything to gain.  Will you attend a free mediation consultation with me, or review the information provided at AZMediator.com?

In some circumstances, the mediator may contact the other party or parties for you to attempt to garner their interest in mediation.  For more information about mediation or how to discuss mediation with others,  you may call this writer at 480-998-1500.

Alona M. Gottfried is a mediator and attorney at Simmons & Gottfried, PLLC.  This Post is not intended to be legal advice.  Please consult with your legal professional before making legal decisions.

Simmons & Gottfried, PLLC
a Professional Limited Liability Company
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

Mediation is very different from the adversarial process of arbitration and litigation.

What is Litigation?

Litigation is probably the best known form of getting a dispute resolved and probably one of the most expensive as well.  Litigation can have considerable drawbacks which include the expense, time and uncertainty over the outcome.  Mediation typically is faster, less expensive gation, arizona mediator, arizona mediation, phoenix mediation, phoenix mediator, mediator phoenix, mediation phoenixand involves both parties reaching an agreement versus being handed an agreement from the court.

What is Arbitration?

Arbitration is similar to litigation, although most would concur that it is a stripped down version of litigation.  In Arbitration there is a neutral third party that sits in judgement and can make decisions with some discretion.  It is similar to litigation in that a case can be won or lost depending on how well an individual performs under oath or while presenting their case to an arbitrator.  The similarity to litigation is that there is still uncertainty as to how the case will end up.  The arbitrator can render their decision that may not be agreeable to either party.

What is Mediation?

The goal of mediation is to assist parties in reaching their own resolution.  The mediator does not judge guilt or innocence or render a decision. In the mediation process, a neutral third party uses skills and techniques to assist parties in reaching a voluntary and negotiated settlement to their dispute.  In the process, the parties will have the opportunity to clean up any misunderstandings, vent, identify issues and concerns and ultimately find an acceptable agreement to the problem. Only the parties in the mediation can decide on a resolution.  The resulting benefit is the parties feel more content with the resolution and avoid the emotional and financial toll that can be experienced during litigation.

If you have a dispute to settle in Arizona you may wish to have a conversation with a mediator first to see if this would be an option to resolve your dispute.

Simmons & Gottfried, PLLC
a Professional Limited Liability Company
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260