Arbitration? Mediation? Family Law Master?

by Annette Burns on February 5, 2011

So you'd like to arbitrate. Or mediate. Or maybe have a Family Law Master appointed?

Several options can help you resolve your family law case, and they can be used separately and sometimes together. Careful consideration must be given to what you're trying to accomplish, what your case needs, and what your client understands about all the processes. Once you've given consideration to those things, discussed the matter with your client, and discussed the process with opposing counsel, you can determine if you need a mediator (see Rule 67, Arizona Rules of Family Law Procedure); an arbitrator (ARS 12-1501 et seq.); or a Family Law Master ( Download Rule72, Arizona Rules of Family Law Procedure). Note the changes to Rule 67 which were effective last year [ Download Rule67ChangesEffectJan2010], which allow a Judge pro tem who is acting as a mediator to sign a final Decree of Dissolution. This can ONLY be done if the court has signed an Order prior to the mediation session specifically permitting the mediator/ Judge pro tem to do this.    Here is the rest of Rule 67 that was in effect prior to those January 2010 changes    Download Rule67

Mediation is a great tool, and most clients these days have a general idea of what mediation is, even before you, the attorney, have a specific discussion about it. It needs to be stressed to the client that mediation is a settlement attempt, that the client always remains in charge of whether the case settles or not, and that the mediator can't make any decisions for the parties or force any final result on them.

When I mediate, the parties are almost always kept in separate conference rooms and have little or no contact with each other throughout the mediation session. I don't count out in-person sessions, however, if the parties are getting along well enough and it appears that they have things that need to be said in the same room with each other. Every case benefits from different interventions.

In 90% of the cases I mediate, both parties insist and want reassurance that they won't have to see each other. That can almost always be accommodated. As the level of frustration gets higher and higher as the day goes on, the separation gets to be a better and better idea.

When settlement or partial settlement is reached near the end of the session (and it rarely happens until the end is near), the settlement terms are put into a Memorandum of Agreement that is signed by both parties. Rule 69 language is clearly stated in the Memorandum, and the intent is that once signed by the parties, the terms will be entered into and are enforceable as a final Order of the Court. The Memorandum of Agreement is not intended to be the final Property Settlement Agreement.  But, if the parties cannot agree on a final document (and the Court doesn't resolve the dispute for them), the actual Memorandum may end up being attached to a Decree of Dissolution in order to get the case finalized. This is never the preferred outcome, but it happens. Note the changes to Rule 69 that became effective January 1, 2010  [ Download Rule69ChangesEffectJan2010 ] 

An alternative to a Rule 69 Mediation Memorandum is that the attorneys prepare and exchange, before the mediation session, a form of PSA or Decree that they are both familiar with.    If this is done before the mediation session, the final terms of settlement can be inserted into that PSA/ Decree at the conclusion of the mediation session, and the parties can sign off on that document.

A clause that attorneys often request in the Mediation Memorandum is that in the event there is disputed language in the final property settlement documents (Decree, PSA and JCA), the mediator is appointed as arbitrator of any disputes. This language is common, but needs to be carefully considered before it's automatically agreed to. If the mediator is put into the position of "arbitrating" final language, s/he is stepping outside of mediation confidentiality, which is always dangerous.   Robert Jensen recently presented, at the Arizona Family Law Institute, proposals for very specific arbitration language that he suggests be used in the event of disagreements about final PSA language.  With Bob's permission, I'll do a later post on that suggested arbitration language.

Preparing the client for mediation. Preparation of the client for mediation is so important that I'm doing separate posts on that issue. My personal feeling is that one of the best reasons to mediate with a private mediator (that is paid by the parties), rather than going through the court ADR process (which in Maricopa County generally consists of a three-hour settlement conference with a Judge pro tem, at no cost to the parties) is that when the parties are paying for the mediator's time, they tend to take the process more seriously and give substantial thought to preparation and settlement possibilities.

Arbitration or Special Master?

Both of these methods call for resolution of the issues by an appointed person who is not the sitting trial judge, but these processes are governed by very different rules. When deciding and discussing with your client whether you want an arbitrator or a Special Master, these factors are relevant:

  1. How you want to be able to appeal the decision if you are not happy with the result;
  2. Timing; should the trier of fact's decision be entered as a final Award or simply a report which needs to be entered/ approved by the trial judge (thereby taking more time)?
  3. Formality of proceedings: Either procedure (arbitration or special master proceedings) can be as formal or informal as the parties agree and the trial judge orders, but the degree of formality must be agreed on in advance so there are no misunderstandings;
  4. Disclosure of potential conflicts of interest. While the Uniform Arbitration Act (effective 1-1-2011) has new disclosure requirements for arbitrators that do NOT automatically apply to Special Masters, I consider it a good idea to hold Special Masters to the same disclosure standard. This can be specified in the Order appointing Special Master.

Make sure your client understands that the parties can stipulate that the arbitrator or Special Master resolves either all issues in the case, or only certain specific issues.

Examples of limited scope arbitration might include: arbitration of language of final settlement documents; child support and support-related issues only; discovery issues only; property valuation and division issues only, but not child custody/ parenting time; or parenting time issues without covering property or financial issues at that time.

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