DATE:        Thursday, April 12, 2012

TIME:          8:00 a.m. – 8:30 a.m. – Registration and Breakfast

                    8:30 a.m. – 9:30 a.m. – Program

                    9:30 a.m. – 10:00 a.m. – Networking

PLACE:      State Bar of Arizona – Boardroom

                    4201 N. 24^th Street, Ste. 100, Phoenix

COST:        $25 (Breakfast Included)

“HAPPY CLIENTS – HAPPY ATTORNEYS:

HOW TO BEST SERVE FAMILY LAW PARTIES USING ADR”

This CLE is a “must-see” for family law attorneys and ADR professionals alike.

Few family law clients can afford contentious litigation that culminates in trial.  Those who go to trial are often unhappy with at least a portion of the ruling and many conclude litigation with unpaid attorney’s fees.  Also, litigation can further strain and destroy family relationships that are already in crisis.  Such results are bad for clients and bad for attorneys.

The panel will discuss different ways, including some overlooked ways, to use ADR to benefit clients, attorneys and ADR practitioners. The discussion will include when and how to use family law masters, arbitration, med-arb and other processes to end those difficult cases to the satisfaction of all involved.

PANEL:
 

ROBERT A. BUDOFF (Caldwell, Padish & Wells PLLC), JOY BORUM (Family Mediation Center), DAVID L. ROSE (Sacks Tierney P.A.) and ALONA M. GOTTFRIED (Simmons & Gottfried, PLLC)

May provide up to one hour of ethics credit.

SPACE IS LIMITED.  PLEASE RSVP by Monday, April 9, 2012.

REGISTRATION/RSVP FORM:

Fee:  $25.00 – Breakfast is included

• If you are paying by Credit Card in advance, please register online by clicking HERE

• If you are paying by check, please mail this form to: State Bar of Arizona, PO Box 53099, Phoenix, AZ 85072-3099

• or you may RSVP by e-mailing Nancy.Nichols@staff.azbar.org and then bring your payment to the event.

_____ I will attend the ADR Mini-Seminar on Thursday, April 12, 2012

My payment in the amount of $_____________

______is enclosed          ______will be paid at the door.

NAME_____________________________________BAR NUMBER _______________

For accounting only: T625-4520-002

To facilitate participation in programs and events the State Bar of Arizona provides reasonable accommodation in accordance with the Americans with Disabilities Act. If you require accommodation, please indicate this on your RSVP form.  Whenever possible accommodation requests should be made as far in advance of the program as possible.

There are many good reasons to mediate your family law dispute.  For example, it is generally significantly less expensive, stressful and time consuming than litigation.  However, a big reason to avoid court and mediate the matter is that Court is risky.  There is not an attorney out there than can guarantee you a result.  That is because family court judges have a lot of discretion in entering rulings.

The Judge makes its decisions based primarily on what he/she sees and hears in Court.  If the Judge, for whatever reason, thinks your spouse is more credible than you or your witnesses are, you may lose an issue. The Court does not have a lie detector, so the Judge may simply incorrectly determine that you are not credible.

In Court, it does not matter who is right and who is wrong; it matters if you can prove your case.  If you could not find the evidence to support your position, you may lose an issue.

Further, the Judge may simply not agree with your position because of his/her own experiences and understanding of the law.  If you try the same case in front of three different Judges, you may get three totally different results.

Even in the best scenarios, both parties are often upset with at least part of the ruling.

In mediation, you choose the outcome.  You are not leaving your financial future (or – if you have children – your children’s welfare) in the hands of a third party.  You are also not paying tens of thousands of dollars in attorney’s fees only to risk losing (and possibly paying the other party’s attorney’s fees).  While the Judge will do his or her best to decide your case, you will always be in the best position to make good decisions for your life.

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

A. What is Collaborative Divorce Law?

Collaborative law is a method of resolving disputes without litigation. The parties agree to stop, delay or avoid litigation and hire professionals trained in collaborative law to negotiate settlement. The parties may just hire their own collaboratively trained divorce attorneys or other professionals as well. Financial experts and child specialists (where children are at issue) are jointly retained. The parties agree not to go to Court, agree to voluntarily disclosure of relevant information. The parties agree not to use any of the experts if they decide to proceed to litigation.

B. Who Should Use Collaborative?

People should consider collaborative when the following are true:

• When they want control over the outcome of their case.

• When both parties are willing to participate.

• When they want or need a continuing relationship with the other party.

• When they want to save money.

• When they want to resolve the matter quicker.

• When they are trying to avoid the stress of litigation.

• When they want privacy.

• When litigation will not provide them with what they need.

C. When Should Collaborative Not Be Used Or Be Stopped?

While the process is equipped to deal with some tough issues like mental health issues and domestic violence, extreme personality disorders will not lend themselves to the process.

Some people choose collaborative because they believe they will be able to better control the other party or the flow of information. If the professionals notice an abuse of process, that is reason to stop the collaboration.

If the process breaks down, it is incumbent on the professionals to ensure a smooth transition.

D. Collaborative Versus Other Methods.

Litigation – Litigation is the use of the Court system to resolve disputes. The parties engage in an adversarial process, usually involving the retention of litigation of separate experts. At the end, a judge (or jury in some civil matters) makes the decision. Litigation is risky, expensive, stressful and time consuming.

Arbitration – Arbitration is also often quicker and less expensive than litigation. However, it does not tend to save relationships, offer creative solutions, allow the parties to control the outcome or offer the support of the collaborative process.

Mediation – Mediation offers many of the same benefits of collaborative law. Mediation tends to be less expensive. Collaborative tends to offer more support through the use of multiple professionals. Parties can use professionals in mediation.

Alona M. Gottfried is a family law mediator,  AZ collaborative divorce attorney and litigation 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 Part 1 of this blog, I discussed some of the “bad” negotiation tactics that derail settlement, as well as provided five tips for successful negotiations.  Below are seven additional tips for negotiations.

6.    Understand your options.  Have a Plan B ready – what you can do if settlement fails.  That way, you can determine whether what is being offered in the negotiation / mediation is better or worse than that.  You do not want to walk away from potential settlement and then realize that the offer was better than any other option you have.

7.    Understand the other party’s options and risks, as well as all aspects of the dispute.  By doing your homework, you will help ensure your credibility, making the other party more likely to listen to your suggestions.  Further, a lack of information often stalls or prevents settlement.

8.    It is ok to be assertive.  By being assertive, you are standing up for what you really want.  Being assertive is not the same thing as being aggressive.  However, before you are assertive, make sure you are advocating for what you really want, and not just your negotiating position or your best case scenario.

9.    It is ok to be optimistic.  While you should not start with a ridiculous position (thereby losing credibility), in many circumstances, it is ok to start higher than where you want to end up.  By leaving some wiggle room, and allowing the other party to make a counter-offer that permits a compromise to ensue, you will make both parties feel better about the outcome.  Both parties will feel like they did not leave anything on the table.

10.    Suggest bilateral compromises.  If you are asking for a compromise, find something that you can give up, and vice versa. By requiring mutual concessions, both parties will value the concessions more and not expect something for nothing.

11.    Don’t take it personally.  Remember that your job is not to preserve your ego, but to get a good settlement.  If the other negotiator is offensive, don’t let that fact derails a settlement that will benefit you.

12.    Be patient.  Good settlements sometimes take time.  You do not want to rush and make mistakes or limit the negations time table, only to spend much more time addressing the fallout from a failed negotiation, like litigation.

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

If you are unsure if mediation is right for you, it is often helpful to hear what someone who has been through the process has to say about it.  Below is a review from one of my recent mediation participants, “Richard G.,” who used mediation to quickly, inexpensively and amicably resolve a divorce involving minor children:

“The process of mediation was a positive experience that allowed us to agree in writing to all the terms of our divorce including a parenting plan in a non-confrontational environment.  Alona, our mediator, was exceptional during our difficult time.  She didn’t “pick sides” and instead focused on how we could effectively compromise to facilitate our divorce.  This spared us otherwise costly attorney’s fees.”

“When you successfully mediate you save thousands on attorney fees and your divorce decree is submitted to the court by your mediator.  Mediation allows you to move on with your separate lives more quickly.  It was nice that we didn’t have to appear before a judge in a court and instead were notified by mail when the decree was official.”

“Having two children together and the impact of our divorce on them was a big concern.  The mediation process allowed us to agree to the terms of our split without dragging out the process in a bitter war for years.  Because of this my relationship with my x-spouse is cooperative allowing us to continue responsible parenting for our children.”

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 have practiced in the area of family law in Arizona for over 15 years. I have litigated divorce cases, mediated divorce cases and worked with a team in a collaborative divorce. This is Part 2 of this article, in which I discuss the five most common mistakes I have seen people make during the divorce process (and other family law matters). Click here to see Part 1.

3. Failing To Realize That, In Litigation, Your Spouse Will Make Sure Anything You Say Or Do Will Be Held Against You. Everyone knows that litigated divorces can get nasty (think “War of the Roses”). However, few people are prepared for the pure ugliness of litigation. People:

a. Tape conversations to use against the other party;

b. Get Orders of Protection against the other party simply to remove that person from the house or to make them look bad;

c. Rally their spouse’s friends, family and employer against them;

d. Write horrible and sometimes un-provable things about the other parent in documents filed with the Court (making them public records).

The result of such litigation can be a severely damaged reputation and tens of thousands of dollars spent on attorney’s fees and expert fees trying to dispute the allegations. Once that course of conduct is started, it is hard to stop. It is best to start the process in a neutral, calm and peaceful environment, like mediation, before things get out of control.

4. Refusing To Get Advice From Other Professionals. Divorces have tax ramifications. Neither an attorney nor a mediator can give tax advice. Only an accountant or tax specialist may do so. Other professional may also provide important advice during a divorce. For example, a child specialist can help parties figure out what is best for the children; a financial planner can help determine one’s needs after a divorce; a real estate expert can advise parties what to do with, say, a house with negative equity; and a lawyer can help a party phrase terms of an agreement to protect rights. While one does not have to hire any expert, a mediator can help parties find the professional advice they want.

5. Believing That Contested, Litigated Divorces Are The Only Option. Many people do not know that mediation or a collaborative divorce are options – they think they have to “lawyer up” and fight if there is conflict. The result is that many people have a much more difficult and expensive divorce than necessary and are left with unfavorable orders that could have been avoided. Litigated outcomes are inherently uncertain. Before deciding on a course of action, it is best to sit down with a professional who knows about litigation, mediation and collaborative divorce, so that one can make an educated decision about which course of action is best.

Alona M. Gottfried is a family law mediator, collaborative divorce attorney and litigation attorney in Arizona. If you have questions about divorce/family law options, 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 an Arizona divorce, the parties’ community property must be divided equitably. The Arizona Divorce Laws are as follows;

What is community property? Community property includes any property obtained during the marriage.  The exception is property one party obtains through gift on inheritance.

What does equitably mean? The law says community property should be “equitably” divided.  That means that the division should be near equal.  In other words, instead of dividing a couch in half, one person may get the couch and the other person may get the big screen television.  Sometimes one person gets more of the assets in exchange for some other benefit, and sometimes one person gets more of the assets and pays the other person an equalizing payment.

What type of property is typically divided?  Divided property could include real property, personal property (furniture, electronics), vehicles, insurance policies, businesses, frequent flyer miles, investments, bank accounts, retirement accounts, and even pets.

When does a party have an interest in the other party’s property?  Sometimes the community (both parties jointly) can obtain an interest in one party’s separate property through gift or through both parties’ contribution to the property during the marriage.  For example,    If one party had a house prior to marriage and the parties used funds earned during the marriage to increase the value of the house, the community would have a “community lien” on the house.

Who decides how to divide the assets? Ideally, the parties will come to their own agreements.  Parties can mediate their divorce.  The parties can hire a neutral party – the mediator – who is a trained in the law and conflict resolution, to help them find a fair resolution.  The mediator can also prepare all of the paperwork with the divorce.  With mediation, the parties have a lot more flexibility on how to divide assets.  The parties can even choose to continue to jointly own assets.  Some people choose to do this if they want to, say, hold on to a house until the market improves.  Absent an agreement of the parties, the Judge decides the division after a trial.

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 my last blog entry, I gave four ideas for preparing yourself for a successful mediation.  Below are four other ideas:

1.     Think creatively. Mediation allows you to consider options that the Court would never address.  For example, you can contract for the payment of a common child’s college education in a mediated agreement.  You cannot do that at trial.  Thinking “outside of the box” may result in a much more satisfying resolution of your conflict.

2.     Be ready to compromise. If you come to mediation with a position from which you are unwilling to move, then not much will happen in mediation.  Come in with an open mind.  Most people have an ideal settlement in their heads.  However, people should also consider their worst case scenarios and reasonable compromises.

3.     Take deep breaths before reacting to something you do not like. If the other mediation participant makes an offer that you find insulting or insane, ask clarifying questions instead of blowing up.  It could be that the two of you just have a misunderstanding that can be cleared up through conversation.  Through a calm discussion, the other person may determine that the offer he/she made was not fair, or you may see that the offer was not so bad after all.

4.     Make it easy for the other person to say “yes.” Your goal is to get the other person to understand your point of view and agree with it.  If you are insulting, demeaning, dismissive or otherwise rude, do you think that other person is going to be motivated to agree to what you want?  If your suggestion benefits only you, will the other person agree to it?  Think about your delivery and demeanor and be able to tell the other person what they have to gain from your proposals

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

Joint Custody Agreements may have to be modified from time to time.  This may be because the children are getting older and have different needs.  It could also be that one or both of the parents’ schedules or residences have changed.  Sometimes a change to the plan is necessary because a parent is not parenting responsibly.

Most Joint Custody Agreements anticipate the need for modification and build in a requirement that the parties must meet every year or two years to discuss changes.  Many Agreements also require that the parties meet with a mediator or Court conciliator before proceeding to Court for a modification action.

Even if one’s Joint Custody Agreement does not include a mediation provision, it may be wise for parents to meet with a mediator to resolve disputes or potential disputes.  A mediator is a neutral person who uses conflict resolution skills to help parties reach amicable agreements.  Mediators can help parties address issues confidentially, quickly and inexpensively.  As most parents’ primary focus is their children, they are not anxious to spend a lot of money or experience a lot of stress related to a Court action.

In some circumstances, mediation may be necessary because a Court action is not allowed or advisable.  Actions to modify custody cannot be initiated within a year of a custody order, absent special circumstances.  Even after a year, the Courts have strict standards of what one must prove to obtain a hearing.  Actions to modify parental access cannot be initiated without a substantial and continuing change of circumstances.   Further, for parental access modification actions, Arizona Rules of Family Law Procedure 91(F)(1)(a) requires that the filing parent certify “whether the underlying parenting time or visitation order or agreement contains a provision requiring the parties to pursue mediation or other alternative dispute resolution process prior to requesting the court to modify or clarify the order or agreement…”   Because the Court recognizes the benefits of mediation, it has the authority to require mediation prior to hearing issues of custody or parenting time, even if it is not required by a Parenting Plan.  Arizona Rules of Family Law Procedure 91(O).

Whether mediation is required or not, it is the sensible alternative to litigation.

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