Phoenix Mayor, Phil Gordon, has recognized October 16, 2011 through October 22, 2011 as “Mediation Week.”  Mayor Gordon, proclaimed this honor in recognition of the Alternative Dispute Section of the State Bar of Arizona (the “ADR Section”) promotion of mediation and other alternative dispute resolution services to “citizens, families, businesses and government bodies…”  The Mayor also recognized the commitment of those that utilize mediation to “innovation in problem-solving and the application of creative dispute resolution options when faced with complex issues and disputes…”  In addition, the proclamation acknowledged the ADR Section for promoting education and the resolution of issues “in a civil manner…”   The Mayor points out that mediation is being used in the work place to assist in communication and problem solving as well as to resolve issues between “companies, individuals, groups, units and individuals.”

Why should you celebrate Mediation Week?  Mediation is an alternative to litigation and ongoing conflict.  It uses a neutral professional trained in conflict resolution to resolve disputes out of court and without all of time, risk, cost, stress and bad publicity that comes with litigation. It is confidential, binding and effective (ending conflict an estimated 88 percent of the time).  Ending conflict is good for the people or entities in conflict. Businesses and the government save money and become more efficient; individuals are able to move on with their lives in a productive manner.  In the case of family law matters, the parties (especially those with children) are able to get through a difficult period in their lives with minimal trauma and financial fallout. Mediation is good for Arizona businesses and its families.

How should you celebrate Mediation Week?

1. Commit to ending your litigation amicably.  If you are in litigation, ask the other party to join you in setting up a mediation.
2. Commit to ending other conflicts by looking for peaceful solutions for yourself or others in your community.  Life is too short to be in conflict. Talking, problem-solving and working together can lead to satisfying results.
3. Have a barbeque (why not?  It works for other celebrations).

Alona M. Gottfried is a mediator, attorney and a Board Member of the Alternative Dispute Resolution Section of the State Bar of 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

As a mediator in Arizona, I have seen all styles of negotiation.  Many people and companies seem to think negotiations mean you have to be unrelenting and overly aggressive.  For example,
•    There are those that start at an impossibly high or low number or demand and then balk when the other side does not meet them in the middle.   You lose your credibility from the get-go if you start with unreasonable positions.

•    There are those who threaten to walk out if their demands are not unequivocally met.  This is not a negotiation.  You will never find common ground or convince the other party to work with you with this tactic.

•    There are those who use threats and chest-pounding to attempt to coerce a settlement.  Again, threats do no garner cooperation and concessions.
Below are some tips for a successful negotiation.
1.    Listen.  By listening to the other party, you will be learning more about what will get the dispute resolved, and knowledge is power.  Ask open ended questions and let the other party do much of the talking.  You will be able to consider new possibilities for compromises that will benefit both parties.   You will also be working toward the second point:

2.    Be kind and generous.  The psychological principal of reciprocity teaches us that it is kindness and giving that begets positive responses in others.  In fact, people feel compelled to respond in kind.  By being respectful, paying earned compliments, listening (see above), and acknowledging the other person’s feelings and point of view, you are creating an environment that is likely to result in a mutually benefit resolution of an issue.  If you attack the other party, that party will be put on the defensive in a way that will make him/her resistant to making concessions.

3.    Be truthful and ethical.  Once you lose your credibility – by, for example, bending the truth or making threats that will not be carried out  -  you will not gain it back.  Negotiations will suffer.

4.    Sell your suggestions.  Instead of stating how the settlement will help you, explain how it will benefit the other party.  Couch the offer in terms that sound most attractive/least offensive to the other party.

5.    Use a mediator.  Use a mediator to help with negotiations.  A mediator will help both parties convey and consider offers and options in a neutral and compromise-educing environment.  A mediator promotes reasonableness in both parties and generally makes settlement much more likely.

Part 2 of Successful Negotiations from the prospective of a mediator

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

Good news for doctors and patients: Pennsylvania has determined that the drop in medical malpractice cases is partially attributed to the use of mediation. In a May 22, 2011 article in the Pittsburgh Tribute Review entitled “Malpractice Lawsuits in Pennsylvania Continue to Decline,” Bobby Kerlik reported that Pennsylvania experienced its sixth consecutive annual decline in malpractice lawsuits in 2010. The decline was also attributed to a change in rules that help prevent frivolous lawsuit. However, the result was significant enough for the state’s Supreme Court Chief Justice Ronald Castille to assert that “the medical malpractice ‘crisis is over.’” Id.

In linking the decline in part to mediation, Reporter Kerlik quoted attorney Bryan Neft, who serves the civil litigation section of the county bar: “Over the past 10 years, private mediation has definitely increased.”

What exactly is mediation? Mediation is a confidential conference directed by a mediator – a neutral person trained in conflict resolution. The parties either meet in the same room or in different rooms. They get an opportunity to tell their side of the story and listen to the other party’s stories. They also get an opportunity to explore amicable resolutions to avoid a legal action.

What does this mean for doctors, patients and malpractice attorneys in Arizona? Potential parties/lawyers in a malpractice lawsuit should explore mediation prior to filing a lawsuit. By doing so, attorney’s fees and costs are reduced, and privacy is intact. Doctors would prefer that claims remain outside the purview of the public eye, and patients would prefer not to have their medical history become subject to a lawsuit. In addition, both parties benefit from not having the stress and uncertainty of a lawsuit in their lives for years. Because neither side to a lawsuit can ever be assured of success at trial, compromise and an early resolution are often preferred to a potential “win” after a drawn out and expensive court proceeding. Because mediation has such a high success rate, there is little risk in suggesting an early mediation.

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

Between 1990 and 2007, there has been an 85 percent increase in the number of cohabitating but unmarried couples.  U.S. Census Bureau. “America’s Families and Living Arrangements: 2007.”  When embarking on a cohabitation relationship, many people do not realize that they may later have legal battles over undefined rights and obligations.  Because the couples are not married, the property division laws that protect divorcing couples do not apply.
Almost half of American Academy of Matrimonial Lawyers (AAML) recently polled stated that they have noticed an increase in the amount of legal battles resulting from cohabitating couples.  AAML, February 2011. Battles can include rights regarding the division of houses purchased, as well as the division of other property and even pets acquired by the couple.  For example, it is not uncommon for both parties to contribute to the purchase and maintenance of a house that is in one party’s name.  Both parties expect to have equal rights to the home but, absent proof of an agreement, only one party may have a recognized legal right.

To prevent future conflict, some cohabitants are choosing to enter into binding Cohabitation Agreements, which are like prenuptial agreements for unmarried couples.  Parties can pre-determine the division of property and debts in the case that their relationship ends.  Cohabitants can even define their respective rights and obligations during the relationship.  The Agreement could also include terms of support, insurance and medical decisions.  Thirty-nine percent of AAML members who responded to a recent survey have seen an increase in these agreements during the timer period cohabitation numbers have increased.  Id.   Cohabitation Agreements, like prenuptial agreements, may seem “unromantic.”  However, by addressing issues in advance, cohabitants are intelligently avoiding conflict and potential litigation .
Cohabitants can mediate the terms of the Cohabitation Agreement.  Mediation allows parties to discuss potentially sensitive issues in a comfortable, confidential and neutral environment with the help of a mediator, trained in conflict resolution.  While the cohabitants should still take the agreement reached in mediation to independent lawyers to ensure that the agreement is fair and binding, by working through a mediator, they foster cooperation and the goal of working together toward the couple’s common future.
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

While divorce mediation gets a lot of attention, mediation is a great way to resolve any dispute.

Within the family law realm, people use mediation to resolve:

• Paternity actions (where unmarried people have children and want to define custody, parental access and support issues);

• Modification actions (where people want to modify child support, custody, parental access schedules, spousal maintenance, property division or debt division);

• Grandparent or non-parent actions (where a non-parent wants access or custody of a child);

• Domestic partnership disputes (where people who have lived together but where never married divide assets and debts);

• Prenuptial agreements (where people who are going to get married want to define the terms of their marriage and/or potential divorce);

• Postnuptial agreements (where married couples want to define the terms of their marriage and/or potential divorce);

• General family disputes (where family members are fighting, and want to peacefully resolve their conflicts with the aid of a trained neutral).

Outside the family law realm, people use mediation to resolve lawsuits, potential lawsuits or simple conflicts.  It is used in employment matters, between businesses, between a business and a consumer, between neighbors and even with government entities.

Mediation is a great way to resolve conflicts without lawyers (unless you want to use lawyers), courtrooms and judges.  The parties make their own agreements with the aid of a mediator, who is trained in conflict resolution.  When people agree to mediation, they reach full and binding agreements approximately 90 percent of the time.   Mediation is confidential, much less expensive and much less time consuming and stressful than litigation.

Please feel free to call me if you would like more information about mediation.

Alona M. Gottfried is a family law mediator, general 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

Arizona recognizes rights to custody of or access with children for non-parents under certain circumstances.   This article will address two forms of non-parental access to children through the family law Court:  grandparents’ rights and what is

Grandparent Custody in Arizona

called in loco parentis rights.  However, there are also methods for non-parents to care for children through the juvenile court, such as where the children do not have a parent willing or able to care for them or where the parties are in the adoption process.  Non-parents can also get a voluntary or involuntary guardianship of children. Parents can also give limited care for children through a power of attorney.  The death of both parents leads to other issues not addressed in this article.

Grandparent’s Rights.  Pursuant to the statute:  A.R.S. § 25-409,  the Superior Court may grant grandparents or great-grandparents “reasonable visitation” if it is in the best interests of the children, and one of the following is true:

a.     The parents have been divorced for at least three months;

b.     A parent is deceased or missing for at least three months; or

c.     The child was born out of wedlock.

The Court will determine whether such visitation is in the children’s best interests by examining such factors as the relationship between the grandparent and the children, the motivations of the grandparents and parents in requesting/denying visitation, the impact the access will have on the child’s family, and if a parent is dead, the benefit of maintaining a relationship with the extended family.

In Loco Parentis Rights: A non-parent can also gain Court-Ordered access is he/she stands in loco parentis to a child.  This means the person:  “has been treated as a parent by the child and who has formed a meaningful parental relationship with the child for a substantial period of time.”  A.R.S. § 25-415.  If a non-parent wants visitation, the parents must be not married or in the process of a divorce.   In the alternative, one parent must be dead or missing

A non-parent can only get custody if, in addition to standing in loco parentis to the child, “[i]t would be significantly detrimental to the child to remain or be placed in the custody of either of the child’s living legal parents who wish to retain or obtain custody.”  This factor must be proven by clear and convincing evidence.  Further, a parent must be deceased, or the parents must be divorced or getting a divorce/legal separation.

While non-parents may be able to fight for rights, it is almost always better to gain access through peaceful means.  First, it is not easy to get rights to children that are not yours.  The law recognizes a constitutional right to parent, including the right to choose with whom your children associate.  Second, a cooperative agreement means peace in the family, and children always benefit from that.  Mediation is a process that values relationships and encourages peaceful resolutions of conflicts.  In mediation, parties utilize a mediator and her conflict resolution skills to help reach agreements that can, if the parties choose, be just as binding as a Court Order.  The end result of an amicable mediation is generally an agreement that values relationships that children need and deserve.

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

Mediation in Phoenix works through the mediator’s use of conflict resolution skills.  A good mediator is one that is trained in and experienced using conflict resolution skills.  Mediators in Arizona use a number of conflict resolution skills.  For example,

Mediators help people generate ideas for resolution and help people consider all aspects of a conflict/agreement.

Mediators know how to help people figure out what they really want.  Sometimes people are angry and cannot clearly see what solution would be best for them.  Sometimes people’s egos get in the way of a resolution of the dispute.  Mediators help people tweak their positions without losing face.

Mediators help people communicate with each other in a way that promotes resolution.  Sometimes conflict is simply based on a misunderstanding.  When people communicate, misunderstandings can be cleared up.  Litigation rarely provides that opportunity.  Also, when emotion is involved, communications may only lead to more conflict.  Mediators know how to take the sting out of communications in a manner that encourages parties to see other points of view.

Mediators can manage emotion.  Mediators know how to address angry people, shut down people, and weepy people.  Mediators help people move past the emotions and focus on solutions.

Mediators can help people be reasonable.  In mediation people explore the best and worst alternatives to a mediated agreement (is settling better or worse than not settling?).  Mediation sometimes includes the use of experts to help people determine what a reasonable solution is.

Mediator provides a forum for quick and easy negotiations.  Sometimes mediation comes down to a negotiation (for example – a dollar amount).  The mediator goes back and forth between the parties, conveying offers, helping the parties explore the offers and helping the parties create methods to break impasses.

Mediation is based on the concept that, with the help of a trained professional, people can resolve their own conflict best through communication, rather than litigation.  As Winston Churchill stated:  “To jaw-jaw is always better than to war-war.”  Mediators help make those communications effective.

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(at)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.

It is likely that, at some point in your life, you will have a boss, a spouse, a business partner or a company who will cause you financial loss or emotional distress.  Often, those situations must be addressed.  However, how you choose to address conflict is up to you.  As Max Lucade said:  “Conflict is inevitable, but combat is optional”.

You can choose to make the conflict the center of your life – engaging in litigation that lasts years, and spending all of your savings to address the conflict.  People engrossed in this kind of conflict can often think of little else.  Some people start seeing themselves as victims, and they lose their sense of control over their lives.

You can instead choose a more peaceful route that addresses real problems without all of the pain and cost of litigation.  That route for many people is mediation.  Mediation is an alternate dispute resolution process embraced around the world to end conflict quickly and powerfully.  The parties to a conflict jointly retain one mediator – a neutral party with conflict resolution skills – to help them resolve their conflict.  This happens through exchanges of information and the use of problem solving techniques.  The parties can enter into binding agreements through mediation, thereby formally ending conflict. Mediation ends conflict most of the time it is utilized.

There is often a palpable moment at the end of a mediation when the parties experience the relief that comes with the knowledge that their conflict is resolved, and they can now able to move forward with their lives.  “Lost time is never found again.”  (Benjamin Franklin)   If you find yourself in a stressful dispute, ask yourself:  How much of my life do I want to waste in 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(at)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.

The answer to this question is dependent on the method you choose to dissolve your marriage, as well as the complexity of your case.

Cost of an Arizona Divorce

The Basics:  In every Arizona divorce, there are filing fees charged by the Court.  The person who initiates the divorce has a $321.00 filing fee.  The other party has a $256.00 filing fee.  However, either party may qualify for a deferral or waiver of Court fees if financial circumstances support that request.  If the parties have children, they also need to each take a Parent Information Program Class, which costs $50.00 per person.

Traditional Litigation in Arizona: If one chooses to represent him/herself, the costs of litigation could be limited to the above.  The Court may order the parties to retain a financial expert or a custody evaluator, or attend a parenting conference or court mediation, which results in additional costs. With attorneys, the cost of litigation depends on how much work the attorney has to perform (for example, how many letters and court filings he/she has to write, how many meetings or court hearings he/she has to attend; how much research he/she has to conduct).  It is not unusual for costs to range from $3,500.00 to over $50,000.00 per person.  If a party just uses an attorney to prepare documents and give minimal advice, the cost is lower.  It is also possible for one party to have to pay a portion of the other party’s attorney’s fees.  The Court can order that based on the disparity in income between the parties or the reasonableness of each party’s positions.  However, an award of fees is in the Court’s discretion.

Arizona Mediation: Mediation tends to cost a fraction of the cost of litigation (with attorneys), and it is completed in a fraction of the time.  With mediation, the parties jointly select one mediator who uses conflict resolution skills to help the parties reach agreements.  The cost of mediation can be as low as $250.00 and generally does not cost more than $1,500.00.

Arizona Collaborative Divorce: Collaborative divorce is a team approach to divorce, where the parties work with a variety of professionals and agree to resolve matters outside of Court.  It is generally more expensive than mediation but less expensive than the average litigated cost.  The parties each retain one collaboratively trained attorney and one coach (to help them through the emotional aspects of the divorce), and then they jointly retain a financial specialist and a child specialist.  While the parties are paying more professionals, each professional performs just the tasks he/she is best equipped to perform, making the process cost-efficient.

Alona M. Gottfried is a mediator and attorney in Arizona.  If you have questions about mediation or family law, she can be reached at: 480-998-1500 or alona(at)sglawaz.com.  You can also visit: Azmediator.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
a Professional Limited Liability Company
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260