Arizona Family Law and an Alternative to Trial
Methods for Resolving Your Case Without Going to Trial
Written by: Tracy Augustin
Trial can be expensive…no doubt about it. Depending on a number of factors, a full-blown divorce trial could easily cost one of the parties over $10,000 in attorney’s fees.
For most clients, that’s a significant chunk of change.
If there is one thing I have learned as a Phoenix family law attorney, it’s this: clients love to hear suggestions for saving money.
With that in mind, I have put together this blog so you can see if an alternative to trial will help you in resolving your divorce case, possibly without ever setting foot in a courtroom.
Alternative to Trial #1: Amicable Divorce
In an amicable divorce, the parties may have reached a settlement prior to even filing for divorce (or the parties may reach one soon thereafter). Once one of the parties files for divorce, they simply wait out the clock (60 day waiting period) (For more information on Arizona’s mandatory waiting period, see another blog of ours called “Do You Remember the Time? (Divorce Time)“). While they are waiting, the parties can put their agreements down on paper in the form of a Consent Decree. Once the clock stops ticking, the parties can then submit their Consent Decree to the assigned judge and wait for him or her to sign off on the agreement, thereby making it official.
Alternative to Trial #2: Offers/Counter-offers
In some divorce cases, the parties may not be completely on the same page about how they will divvy up the pie. If the parties are close on most issues, it may be appropriate for one party to send an offer of settlement for the other party’s review. Even if the party does not fully accept the offer, the majority of the time (in my experience), a response or counter-offer will follow. This process may go on for awhile. Reviewing the offers and counter-offers can be helpful in determining how far apart the parties are from one another. Many times the parties will see, on paper, that if they compromise on one issue, they may be able to get their soon-to-be-ex-spouse to compromise on another.
Alternative to Trial #3: Informal Settlement Conference
Informal Settlement Conferences are typically used as a method for settlement when there are two attorneys on a case and a neutral third party is not required to facilitate the negotiations. In this alternative to trial, typically, the parties and their attorneys are all in one room together. (As such, this may not be an appropriate forum if there is a history of domestic violence or abuse.) Assuming the case is not high conflict, there is no abuse nor domestic violence, sometimes just getting the parties face-to-face can help resolve outstanding matters, especially if there is a lack of communication, but the parties are really not that far apart in their positions. On the other hand, Informal Settlement Conferences are not as helpful when one or both parties are too unreasonable and unwilling to compromise.
Alternative to Trial #4: Mediation
Mediation is a process whereby a neutral third party attempts to facilitate a mutually agreeable settlement between the two parties. Mediation is conducted with both parties and, in some cases, their attorneys. A mediation session can be conducted as a “round table,” with all players in the room at the same time or it can be conducted in a caucus style. When a mediation session is conducted by way of caucus, the parties are placed in separate rooms, and the mediator shuffles back and forth between rooms, delivering offers and advice.
Mediation can be court-ordered and conducted through Conciliation Services with Maricopa County Superior Court. In this instance, attorneys are not permitted to attend the mediation session. However, Mediation can also be done voluntarily with a private mediator either with or without attorneys present. Typically, court-ordered mediation is free or relatively affordable. Private mediation, on the other hand, can become comparatively expensive, especially if both parties are represented by their respective attorneys.
Alternative to Trial #5: Alternative Dispute Resolution (ADR) Settlement Conference
ADR Settlement Conferences are scheduled through the court by the assigned judge. There are many similarities between mediation and ADR Settlement Conferences. One major difference, however, is the fact that ADR Settlement Conferences are conducted by a Judge Pro Tempore (a licensed attorney volunteering his or her time). Prior to appearing at an ADR Settlement Conference, you must submit an ADR Settlement Conference Memorandum outlining the contested issues in the case for the Judge Pro Tempore’s review. If an attorney is on a case, they will almost always attend ADR Settlement Conferences with their clients.