Mediation Practices in Arizona Family Law Cases
Generally, any disputed family law issues are subject to mediation. Mediation may be conducted by a private mediator agreed upon by the parties, a mediator assigned by the court from a roster of mediators maintained by the court, or a mediator participating in an ADR process overseen, administered, or approved by the court.
The parties are free to select a private mediator by agreement. If private mediation is agreed upon, the parties or counsel, if any, shall sign and file with the court a written notice that private mediation will take place, stating the name of the mediator and date set for the initial mediation conference. The parties may request the court to choose an independent mediator from a list of mediators supplied by them or from a roster of mediators maintained by the court. Unless the court orders or the parties agree otherwise, the cost of mediation shall be equally shared by the parties. The mediator may not conduct any subsequent family assessment or evaluation in the same case.
The court may decline to order a matter referred to mediation if it appears that mediation is inappropriate for reasons such as parental unfitness, substance abuse, mental incapacity, domestic violence, or other good cause, or that mediation will cause undue delay.
In a proceeding concerning custody or parenting time of a child, if an order of protection is in effect involving the parties or there is a finding by the court of any conduct that would form the basis for an order of protection, the court may order mediation or refer the parties to mediation only if there are policies and procedures in place that protect the victim from harm, harassment, or intimidation.
Upon entry of an order or referral to mediation, neither party to the dispute may apply for entry of default against the other party until the mediator files a report with the court advising the court that mediation has concluded, unless otherwise ordered by the court.
When an order or referral to mediation has been entered, the mediator will schedule a conjoint or individual conference or conferences that each party must attend. No scheduled trial or hearing shall be continued for failure to complete mediation without order of the court. Counsel for a party shall not be excluded from a mediation conference unless agreed to by the party and counsel.
If the court refers or orders a case to mediation, the parties shall notify the court that the mediation has concluded and advise the court of any agreements reached within ten (10) days after the conclusion of the mediation and not later than ten (10) days prior to the date set for trial or hearing. All binding agreements reached by the parties shall comply with Rule 69. As part of any agreement reached, the parties shall acknowledge that the agreement was entered into by them voluntarily and without undue influence, after full disclosure of all relevant facts and information, and is intended to be a final binding agreement pursuant to these rules, and that it is fair, equitable and in the best interests of the children. If no or partial agreement is reached during mediation, the mediator shall file a brief report with the court stating that the parties met and attempted to resolve their differences but the mediation was unsuccessful. The report shall also state any agreements reached and the issues remaining for resolution. The mediator shall not report the positions of the parties and shall not comment upon or offer any opinion about the position of any party. The mediator may also advise the court if the parties or the mediator believe that further mediation would be helpful to resolving the remaining issues.
Finally, although a party may be required to appear and attend a mediation, actual good faith participation in the mediation itself remains voluntary.
For more information on this or other Arizona Family Law issues, contact the premier and discounted Arizona Family Law Firm of Ariano & Reppucci, PLLC.