"What are my legal rights?" The law does not provide a clear answer to this question. In general, the settlement must simply be fair. A fair division of community property in Arizona is an equitable division, which is defined in case law as that which is "substantially equal." The philosophy of the Family Mediation Center is that there is no such generalized "fair" divorce, only individual "fitting" divorces that consider the unique features of the parties, their resources and values.
"If the mediator is a lawyer, will she or he give me legal advice?" Even though the mediator may be an attorney, the Canons of Ethics under which attorneys practice do not permit an attorney to represent more than one party when there is a conflict. The mediator's concern is for the couple and the family. She or he is dedicated to the pursuit of a fair and equitable agreement for BOTH parties. To that end, the mediator/lawyer can provide general legal information, may give the parties a sense of the legal arguments that may be used for both sides of an issue, and may inform the parties of the range of possible outcomes. What is important to remember is that the mediator is trained to facilitate cooperative negotiations between the parties, while attorneys, from their training as advocates, are accustomed to the use of competitive bargaining tactics.
"Do I still need an attorney?" Attorneys may be employed in a variety of ways in conjunction with the mediation process. Attorneys may be consulted during the process or upon completion of the process, whatever is most appropriate for the couple. At a minimum, couples are encouraged to have the agreement reached in mediation reviewed by independent counsel.
Good legal advice can be very helpful to the mediation process. Many parties come to mediation already represented. Some have invested heavily in the adversarial process without much success. In his or her role as an impartial facilitator, the mediator is the only person who can talk to both parties and both attorneys. This serves to keep the communication open and to avoid misunderstandings that might otherwise result in escalation of conflict.
"What is the result of the mediation process?" The agreement that is reached during mediation is written up by the mediator. There are three ways in which the agreement can get entered in the court and become final:
- The mediator/attorney at Family Mediation Center can draft all of the legal documents and complete the dissolution process for you. Each party is encouraged to have these documents reveiwed by independent counsel. You will not need to make any court appearances.
- Some couples will choose to file the legal papers themselves or use a document preparation service.
- If you wish to have your own attorney draft the legal documents, the mediator can summarize your agreement in a Memorandum of Understanding. The party whose attorney is not doing the drafting is encouraged to have the final documents reviewed by his or her own legal counsel.
"How does the cost of a mediated settlement plus divorce compare with employing two attorneys and going through the traditional legal system?" An exact calculation of costs in either system is simply not possible because no one can predict in advance how much time will be required and what difficulties will be experienced by the parties in reaching settlement. However, most of the time charged by the mediator will reflect the time actually spent with the parties. In the adversarial process, much of the time charged is for negotiating outside of the presence of the parties. It has been our experience that this fact, in combination with the danger of escalation of issues that is inherent in the adversarial process, increases, in general, the costs and delay of an adversarial divorce over that of a mediated divorce.
Financial costs, however, are not the only consideration. Divorce claims both an emotional and financial toll, but the costs to the parties and the family following the divorce can be even more significant. Research indicates that the post-divorce relationship of the couple and family for mediated couples is significantly better than for couples who have been divorced through the traditional legal system. Mediation sets the stage for better parenting and better adjustment after divorce on the part of both children and spouses.
"What about the children?" Children are a major concern at the Family Mediation Center. A child psychologist may be used in conjunction with the mediator to help parents design a child care plan that will best meet the needs of the parents and children. Children, with the approval of the parents, are sometimes brought into the Family Mediation Center for a visit with the mediator and/or psychologist. This may help the children cope with their own fears, increase the parents awareness as to how they can best assist their children through the transition, and help the parents design the best child care plan for all concerned.
"Of all the divorce-related interventions implemented to date, custody and divorce mediation enjoys the most empirical support regarding the benefits to divorcing and divorced families. The potential benefits are substantial in both the short term (earlier settlement of parenting disputes, reduced parental conflict, improved parental support), and the longer term (more sustained contact between fathers and children 12 years later), relative to parents using the traditional adversarial system." Article by Joan Kelly, Ph.D. and Harold Lamb, Ph.D.
The Family Mediation Center is here to help you and your family through a difficult period in the most constructive way possible. The only requirements for success in mediation are that both parties have the desire to cooperate, are willing to participate fully in the process, and wish to achieve an agreement. In mediation, you are in the driver's seat of your divorce. We urge you to take advantage of our one-half hour courtesy session in order to explore this alternative further.