Alternative Dispute Resolution (ADR) Changes in Family Law
The Alternative Dispute Resolution (ADR) procedure in Maricopa County recently changed. These changes to ADR could impact your ability to resolve your divorce. The two main changes are outlined below, followed by a brief summary of ADR.
Notable changes made to the ADR process in Administrative Order 2021-041.
- The request for ADR is now made jointly (by both parties together) to the family court presiding judge instead of the judge in your case.
- Both parties must certify that the case is ready for ADR, including that they have all the information they need to reach an agreement and they have both sent comprehensive settlement letters to each other.
What is Alternative Dispute Resolution (ADR)?
ADR is a Court-ordered mediation (settlement negotiation). During a family law case, the parties are ordered by the judge to work with a third party, usually a judge pro tempore (a part-time “volunteer” judge -usually a family law attorney), to see if they can reach any agreements. ADR is a program designed by the court to help parties effectively resolve their matters, saving both the court and the participants time and money.
How will ADR help me?
Mediation (ADR) is one of the most effective ways of resolving legal disputes. Settling the issues in your case outside the courtroom gives you the opportunity to shortcut your divorce. It can save you time, stress, and money. Mediators, and in this case judge pro tempores, bring their skills and experience to give you the best chance of reaching an agreement. ADR is essentially, a free mediation. For that reason, it can be highly beneficial when done right.
How much does ADR cost?
As of this publication, ADR remains free, which is why it is such a popular option. Most private mediations cost between $2,000 – $10,000. The costs savings over private meditation make ADR a bargain in comparison. Further, it provides a good opportunity for parties to make progress in their case. Reaching an agreement at ADR can also save legal fees throughout the rest of your matter.
How do we know if we’re ready for ADR?
If you have all the information you need to settle the outstanding issues, you are ready for ADR. For example, if there is an unresolved financial issue, you need bank statements, estimated values of cars and properties, insurance costs, etc. But if there are still questions as to what assets or debts are out there or if you do not know what they are worth, you are not ready for ADR.
If you and the other party have exchanged comprehensive settlement letters and/or written proposals trying to resolve all outstanding issues and have not been able to reach an agreement, you are ready.
*It is important to understand that if you certify that you are ready for ADR and a mediation is set, but you are in fact not ready, you can face financial sanctions from the court.
How do we qualify for ADR?
ADR will be ordered on the following conditions:
- The matter is one that is pre-Decree. In other words, this option is not available for modifications.
- Discovery and disclosure are complete. This means that both parties have all the records and evidence necessary to make an informed decision.
- Comprehensive settlement letters have been exchanged but issues remain outstanding. – A comprehensive settlement letter is one that lays out your proposal for each outstanding issue in the case. It lets the other party know on what terms you are willing to settle. You are not bound by a settlement offer in a later trial under Rule 408 of the Arizona Rules of Evidence.
- The parties cannot afford private mediation.
- The parties will comply with the rules of ADR.
- The parties will certify that all of the above is true. -This is basically swearing under oath that everything in the application is accurate.
*Importantly, this is offered to parties, regardless of whether one party is represented, both parties are represented, or neither party is represented. If both parties are unrepresented, it is wise to meet with an attorney prior to court ordered ADR to ensure you are following the rules and procedures as outlined.
How do we apply for ADR?
After the latest rule change, to set an ADR, the parties must ask the Family Court Presiding Judge directly. As part of that request, the parties must certify that the above conditions are all met. If the parties must continue ADR because they are not prepared, the assigned JPT must notify the Court.
What happens at ADR?
What happens at an ADR will vary depending on how the judge pro tempore conducts the mediation, but generally most practice “shuttle diplomacy;” they set up the parties in separate rooms and meet with each party and their attorney individually, and they relay offers and other relevant information to each party. Ideally, the parties do not have to speak with each other or even see each other at an ADR.
Why will we be sanctioned if we are not ready for ADR?
The Court views ADR as a finite resource because it’s so effective in resolving cases. But it is a limited resource—there are only so many slots available for parties to attend ADR. And, regrettably, what has been happening is that many parties are not prepared for ADR and they are not ready to discuss settlement on at the ADR.
For example, years ago, we were handling a case that went to ADR. We were a year into the divorce at the time we got to ADR. Six months prior to the ADR, we sent opposing counsel all the documents he needed to make an informed settlement regarding the case. But on the day of ADR, he told the judge pro tempore that he and his client could not make any offers because he had not had a chance to review our disclosure yet. So, everyone went home, and we missed out on our chance to mediate through ADR.
ADR is a valuable tool that can save you time, money, and stress. But remember to be prepared. With a little preparation, you can save yourself the hassle of a long-drawn out family law matter.