What is the definition of “arbitration”?  Arizona Rules of Family Law Procedure (hereinafter “ARFLP”) 66(B) defines arbitration as:  “a process in which parties agree to submit the issue(s) in the dispute to a neutral third party or parties retained by the parties for a binding decision, in accordance with the Arizona Arbitration Act, A.R.S. §§ 12-1501 to 1518.”

 Can family law litigants stipulate to use arbitration?  Yes.  ARFLP 67(c).

What issues can be arbitrated?  Parties can arbitrate all issues in their family law case or discrete issues.  ARFLP 67(c).

What laws govern the arbitration?  The arbitration is subject to the Arizona Arbitration Act (A.R.S. § 12-1501 et seq.) or other laws permitting arbitration.  ARFLP 67(c).

How is the process initiated?  The parties are to file written notice of the agreement to arbitrate.  The notice must name the arbitrator(s) and the dates on which the arbitration is scheduled.  ARFLP 67(c).

How is the arbitrator paid? The parties contract directly with the arbitrator(s). ARFLP 67(c).

Is the arbitrator(s)’ ruling binding?  “The decision of the arbitrator(s) shall be submitted to the court for a determination that said decision conforms to statute for entry of a decree or other written orders in accordance therewith.” ARFLP 67(c).

Alona M. Gottfried is a family law mediator, arbitrator 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

The Arizona Rules of Family Law Procedure (hereinafter “ARFLP”) define mediation as “a voluntary confidential process in which parties enter into one or more private discussions with a neutral third party to resolve the dispute.”  ARFLP 66(B).

 The Arizona Rules of Family Law Procedure state that any issue may be mediated. ARFLP 67(B).  The parties can agree to mediation, or the Court may order mediation.  ARFLP 67(B)(2).   However, even when ordered, participation is voluntary. ARFLP 67(B)(9).

The Court may appoint a mediator, or the parties may agree to a mediator. The agreement reached in mediation must comply with ARFLP 69, and “the parties shall acknowledge that the agreement was entered into by them voluntarily and without threat or undue influence, after full disclosure of all relevant facts and information, that it is intended to be a binding agreement, and that it is fair and equitable, and, where there are minor children common to the parties, that it is in the best interests of the children.” ARFLP 67(B)(7)

The Court may decline to order mediation where mediation may not be appropriate, such as where there has been domestic violence. ARFLP 67(B)(2).  If domestic violence has occurred, proper procedures must be in place to protect the victim. ARFLP 67(B)(2)(a).  The mediator also has an obligation to decline to mediate a case where domestic violence makes it inappropriate. ARFLP 67(B)(2)(c).

The Court may appoint a Judge Pro Tem to conduct the mediation, in which case the Pro Tem may approve agreements, make jurisdictional findings and enter orders. ARFLP 67(B)(1)(b).  The Pro Tem may be paid, but not for judicial tasks, such as approving agreements or signing orders.  Id. 

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

Most good attorneys at least consider mediation at some point during a case.  All actions attorneys take during a case are to promote the interests of their clients. In most cases, mediation is the best option for clients.  However, attorneys benefit from mediation too:

• Clients Are Happy.  All attorneys want their clients to be happy. We achieve a sense of accomplishment from a case well-handled. Further, happy clients refer future clients.  Clients who, through mediation, save time and money, preserve relationships and control the outcome of their case, tend to be more satisfied.  Further, there is no risk of a negative ruling.
• Less Outstanding Balances.  As many clients cannot afford contentious litigation these days, attorneys are often left with the decision of either withdrawing from   a    case before it is done or amassing a significant bill that the client may never pay. Mediation helps keep cases affordable, which benefits the attorney as well.
• Help Dealing With An Unreasonable Opposing Party. If the other party is being unreasonable, involving a mediator often helps.  Mediators know how to help parties to consider their positions in a fresh light and assist parties in gracefully backing away from unreasonable positions.
• Help Dealing With An Unreasonable Opposing Counsel. When the opposing counsel is being unnecessarily contentious or unreasonable, it is hard to settle a case.  The other party is usually going to listen to his or her attorney regarding settlement terms.  Mediation gives the other party the opportunity to consider information about his/her case from a trusted person other than his/her attorney.  New information and the opportunity to hear different points of view can lead to new settlement possibilities.

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

What is a family law master?  The Arizona Rules of Family Law Procedure define a family law master as “a person appointed by the court, including a family law conference officer, to take evidence on one or more disputed issues and submit a report to the court containing findings of fact and conclusions of law.”

How does a family law master get appointed?  A family law master may be appointed based on the stipulation of the parties or on the Court’s own motion.  ARFLP 72(A). 

Who can be a family law master? The family law master may be an attorney “or other professional with education, experience, and special expertise regarding the particular issues to be referred to the master.”  ARFLP 72(A).  The parties can stipulate to a particular family law master. However, the Court reviews the qualifications of the proposed family law master and must approve the selection.  Id. 

How is a family law master compensated? The Court determines the compensation and the allocation of the cost between the parties. The parties can stipulate to the amount of compensation, subject to the Court’s approval. The cost is to be considered a taxable cost.  ARFLP 72(A).

What issues may a family law master adjudicate? The master may deal with any matter under Title 25 of the Arizona Revised Statutes that a Judge may hear, including post-decree matters.  The order appointing the family law master shall specify the issues for the master. ARFLP 72(B).  The Committee Comments advise that a Parenting Coordinator should be used instead of a master if the issues involve the “ongoing enforcement of custody or parenting time orders or related issues….”

What powers does the master have? The master can take all actions necessary for him/her to perform his/her duties (unless limited by the Court’s appointing order). The master can require evidence and rule on its admissibility and may place witnesses and parties under oath and examine them. ARFLP 72(B). The master can also recommend sanctions against a party.  ARFLP 72(I). A master appointed to divide retirement benefits, stock options or other employment related benefits has additional powers to divide the assets with or without the parties’ cooperation.  ARFLP 72(L).

Who determines the timing of the hearings and submission of the report?  The Court will set forth these deadlines in its order appointing the family law master.  ARFLP 72(B). 

Do the rules of evidence apply to the master’s proceedings?  ARFLP 2(B) applies, giving the parties the opportunity to request strict compliance with the rules of evidence. ARFLP 72(C).  Subpoenas for witnesses can also be issued, subject to the same consequences of noncompliance as in a trial.  ARFLP 72(D). 

Is using a master a good option if the parties want a speedy resolution?  Yes.  A master must set a meeting within twenty days after the initiating order. ARFLP 72(C). Further:  “It is the duty of the master to proceed with all reasonable diligence.” Id.  The Rules also have a procedure for prompt ruling from the Court.  ARFLP 72(G).

How does the master issue his/her decision?  The master prepares a report with findings of facts and conclusions of law, files it with the clerk of the court and mails it to the parties. The master may choose to first submit a draft to the counsel/parties to garner their input. ARFLP 72(E). 

Can a party object to the report?  The parties can stipulate that the master’s findings of fact are final, in which case, the Court can only consider the questions of law. ARFLP 72(H).  Otherwise, a party can file a motion to reject or modify the report, referencing the record, and the other party can file a response to the motion. ARFLP 72(F). The Court can then set oral argument, take more evidence, or simply, accept, reject or modify the report. ARFLP 72(G).  The Court can also set a hearing on its own motion. Id.  The Court will review conclusions of law de novo, and will not reverse findings of fact unless clearly erroneous.  ARFLP 72(H). 

Does a master have immunity?  Yes, for:  “all acts undertaken pursuant to and consistent with the order of reference.”  ARFLP 72(J).

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

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.

People do not have to live in the same city, county, state or even country to mediate their dispute.  One or both parties can be somewhere outside of the mediator’s office during the mediation.  First, parties can mediate over the telephone.  One party may be in the mediator’s office, or both parties may be on the phone with the mediator.

Second, parties can use videoconferencing like Gotomeeting or Skype  to mediate their disputes.  There are now a number of computer programs that allow parties to sign in and actually see the other people on the video call.  Videoconferencing has the benefit of allowing everyone to see the other participants’ body language.  Seeing the other participants may prevent misunderstandings and/or encourage empathy.  People are less likely to say hurtful things or take unreasonable positions when looking at the other party.

There will be some logistical issues to address with a remote mediation.  Because at least one party will not be in the same room as the mediator, the distant party or parties will have to sign the Confidentiality Agreement and Agreement to Mediate in advance.  Further, if the parties reach an agreement that needs to be signed, the distant party or parties will have to receive, sign and return the written agreement through fax, email or mail.  If the mediator is also drafting court documents for the parties, such as stipulated motions or divorce petitions or decrees, the distant party or parties will also have to send these documents back through the mail, if original signatures are necessary.  However, these minor inconveniences do not negate the many benefits of resolving a case remotely.

Even if people live in the same area, they may choose video or telephonic mediation to avoid being in the same building with the other person (where there is great animosity or an Order of Protection).  Other people may choose these modes of remote mediation simply to be able to fit a mediation into a lunch hour or some other time limitation.

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

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

I read an article entitled: “To Boldly Forgo: Trekkie Loses His Painstakingly Recreated Star Trek Flat To Ex-Wife In Divorce,” in the Daily Mail (dated January 27, 2012 and written by Emma Reynolds) about a divorcing man who stands to lose the apartment that he had lovingly converted into a Star Trek flight deck.  This article caught my eye for two reasons:  First, I am a Star Trek fan (I am a nerd, and I am proud).  Second, I believe this man and his wife may have been able to reach a different outcome in mediation (I am a mediator, and I am proud).

The article explains that British resident, Tony Alleyne, converted his apartment into a replica of a Star Trek flight deck over a ten year period as a way to deal with the pain of separating from his wife.  Now the parties are divorcing, and Mr. Alleyne’s wife wants to sell the apartment.  In Arizona, the wife would have the right to make this request because the apartment would be considered a community asset (an asset obtained during the marriage and not by gift or inheritance).  Apparently England has a similar law.

If the parties had mediated their divorce, they may have come up with a solution that allowed Mr. Alleyne to keep the apartment.  Mediation is a way to resolve matters out of Court where the parties, with the aid of a mediator, come up with their own resolution.   In mediation, the parties to a divorce can problem-solve and be more creative than a Court can be.  Further, both parties are motivated to make compromises to reach a full agreement.

Perhaps Mr. Alleyne could have offered ‘the Missus’ other assets or funds as an offset for the apartment, or perhaps he could have refinanced the apartment and paid his wife her half of the equity.  Maybe they could have agreed to delay selling the property for a number of years.  Who knows what solutions would have arisen if they would have sat down to talk with the goal of reaching the best outcome possible for both of them?

While we cannot change the sad turn of events for Mr. Alleyne, we can marvel at the work he did on his apartment – from the doorbell that chimes with the voice of Captain Picard to the very impressive transporter room.  Pictures and the article can be found at:  www.dailymail.co.uk/news/article-2092504/Tony-Alleyne-Trekkie-loses-painstakingly-recreated-Star-Trek-flat-ex-wife-divorce.html

Alona M. Gottfried is a family law mediator and lawyer in Arizona.  If you have questions about divorce 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 Arizona, one has the option of getting a legal separation.  With a legal separation, married couples remain married, but the Court divides all assets and debts, and decides the issue of spousal maintenance.  Where children are involved, the Court also decides the issues of child custody, child access and child support.  The process to get a legal separation is basically the same as that of a divorce.

Why would someone want to get legally separated?  First, the parties may want to get back together.  The legal separation allows parties to live separately and have their finances determined in the interim.  Second, some religions frown on divorces.

There are also some financial reasons people stay married, even though they want to live separately.  The following are some possible advantages.  However, readers are cautioned to examine each one carefully with an appropriate professional to determine if the reasoning applies to them:

1.    If a marriage lasts ten years or more, a spouse may be entitled to more Social Security benefits.
After ten years of marriage, a divorced person at his/her full retirement age who has not remarried may be entitled to 50 percent of his or her ex-spouse’s entitlement,
if it is more than his/her own benefits.

2.    A legally separated spouse may be able to stay on his / her spouse’s health insurance.
Generally a divorced person cannot stay on his/her ex-spouse’s insurance.

3.    Married people may get a tax benefit from filing jointly.  One would have to check with his/her accountant to determine if he/she can file jointly if legally separated.

4.    One may be able to continue to use some military benefits.

If you are contemplating legal separation or divorce, it would be worth your while to learn about mediation.  Mediation is the cooperative, less expensive, less acrimonious and less time consuming way to handle either a legal separation or a 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 recently saw an article with a similar title as the one above and decided to put in my two cents on the topic.  As a long time Arizona attorney and mediator, I have gotten to see the range of experiences in both litigation and mediation.  Most mediations go swimmingly well – the parties reach a full agreement in a matter of a few hours.  The parties are able to end their marriage or former relationship respectfully.  Where there are children involved, and an ongoing relationship is necessary, the parties are able to build a new relationship in mediation – for the benefit of their children.

Some mediations are more difficult.  For example, one or both parties could have hurt feelings related to the demise of a relationship.  Emotions may get in the way of a reasonable resolution.  Or, the parties could have dramatically different ideas about how assets should be divided or whether spousal maintenance should be paid.  Those mediations could take a number of sessions and much determination to resolve.  I am here to say:  the effort is worth it.

One might think that the best thing to do when parties hit an impasse in negotiations is to litigate.  However, litigation is generally risky, stressful expensive and ugly.

Let’s focus on “risky.”  There are many of shades of gray in family law.  There is no attorney out there who will guarantee a client a particular result.  That means that, often, either party with conflicting arguments may prevail.  If a party found an attorney willing to argue a position, there is a good chance that party’s argument has some merit.  Therefore, going to court means that a party is spending substantial time and money and may not get what he/she wants. It is certainly very unusual to get everything one wants through litigation.

Even if someone beats the odds and prevails in Court on all issues, that may not be as positive an outcome as one may think.  The loser in this hypothetical situation is not going to be happy.  He or she may do whatever he or she can to make the other person’s life difficult.  And, both parties would have still likely spent many months and tens of thousands of dollars to get that result through litigation.  As an aside, most people do not want to “crush” their former loved-one or the parent to their children.  That benefits no one.

George Herbert, a poet and orator, said it best:  “A lean compromise is better than a fat lawsuit.”   Even when mediation is challenging, there is a reward to sticking to it.  The reward is much bigger and better than saving time and money.

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., Scottsdale Arizona 85260