The Alternative Dispute Resolution (ADR)This is a court-ordered mediation that the parties attend. It is usually conducted by a commissioner or Judge Pro Tempore serving as the mediator. The mediator will usually require the parties to submit a Mediation Memorandum prior to mediation. The mediator will then work with…Read more about Alternative Dispute Resolution (ADR) procedure in Maricopa County recently changed. These changes to ADRAn initialism for Alternative Dispute Resolution, a court process in which the Court orders the parties to resolve their difference either in mediation or by an alternative proceeding. ADR is governed by ARFLP Rule 67 and consists of four categories: (1) collaborative divorce…Read more about ADR could impact your ability to resolve your divorce. The two main changes are outlined below, followed by a BriefThese are the documents that each party files to make their case to the Court of Appeals. These tend to be lengthy, well-researched, heavily cited documents. The parts of a Brief include the Title Page, Table of Contents, Table of Authorities, Statement of the Case, Background…Read more about Brief summary of ADR.
Notable changes made to the ADRAn initialism for Alternative Dispute Resolution, a court process in which the Court orders the parties to resolve their difference either in mediation or by an alternative proceeding. ADR is governed by ARFLP Rule 67 and consists of four categories: (1) collaborative divorce…Read more about ADR process in Administrative Order 2021-041.
- The request for ADR is now made jointly (by both parties together) to the family court Presiding JudgeEach county’s superior court has a judge who is in charge of the court.Read more about 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 SettlementAn agreement by parties in a lawsuit to resolve the case without going to trial. This can be resolving all the issues or just a few of the issues. The issues resolved should be reduced into a written agreement that both parties sign and then submit to the Court for approval. This…Read more about Settlement letters to each other.
What is Alternative Dispute Resolution (ADR)?
ADR is a Court-ordered MediationA common settlement method where the parties use a mediator, a neutral third party, to negotiate a settlement. Family law mediations usually involve the mediator meeting separately with each party and their attorneys. Mediation is often highly effective.Read more about Mediation (settlement negotiation). During a family law case, the parties are ordered by the judge to work with a third PartyAn individual, entity, or the state that either brings the lawsuit or is required to respond to the lawsuit. See ARFLP Rule 3(f).Read more about 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 MediationA common settlement method where the parties use a mediator, a neutral third party, to negotiate a settlement. Family law mediations usually involve the mediator meeting separately with each party and their attorneys. Mediation is often highly effective.Read more about 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 SettlementAn agreement by parties in a lawsuit to resolve the case without going to trial. This can be resolving all the issues or just a few of the issues. The issues resolved should be reduced into a written agreement that both parties sign and then submit to the Court for approval. This…Read more about 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 SanctionsPenalties imposed by a court for improper conduct, such as withholding information a party is required to hand over. The sanctions can include paying attorney's fees, not being allowed to defend certain positions, having to take certain classes, and, in limited circumstances (and…Read more about 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.
- DiscoveryGoverned by Rules 51 to 65 of the Arizona Rules of Family Law Procedure, this is the formal process of acquiring information that you need to put on your case. This includes options like interrogatories (written questions), depositions, subpoenas, and Requests for Productions.…Read more about Discovery and DisclosureFollowing Rule 49, this is when you provide documents, evidence, and information regarding your case to the other side. Any evidence you want to use must be disclosed to the other side. Disclosure is not filed with the court.Read more about 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 LetterFormal written correspondence from one party to another outlining positions to resolve outstanding issues of a matter. Typically protected under rule 408, settlement letters can be an effective way to come closer to resolution before litigation becomes necessary.Read more about Settlement Letter is one that lays out your proposal for each outstanding issue in the case. It lets the other PartyAn individual, entity, or the state that either brings the lawsuit or is required to respond to the lawsuit. See ARFLP Rule 3(f).Read more about Party know on what terms you are willing to settle. You are not bound by a settlement offer in a later TrialA court hearing in which evidence and testimony are taken, and the Court makes a final determination of the issues raised in a petition. Trials and evidentiary hearings are somewhat synonymous, but the difference is one of scope: Evidentiary hearings are more limited in scope…Read more about 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 OathWhen a witness is sworn that they will tell the truth, the whole truth, and nothing but the truth. Those conscientiously objecting to an oath may enter into a solemn affirmation instead under ARFLP Rule 15. See Solemn Affirmation.Read more about 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 RelevantAs defined by Black’s Law Dictionary, “Logically connected and tending to prove or disprove a matter in issue; having appreciable probative value — that is, rationally tending to persuade people of the probability or possibility of some alleged fact.” (Black’s 11th ed., 2019).…Read more about 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.
Additional Resources:
Maricopa Superior Court: ADR General Information
Recent changes (Sept 2021): Administrative Order No. 2021-041
