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