Divorce Mediation: What Works for One Arizona Divorce Mediator
Giving Your Client More Than One Chance to Settle a Divorce Case
There are many opportunities to settle a client's divorce case. I suggest you consider multiple attempts to settle your client divorce or family law case at severals stage of the divorce. Considering settlement at every stage of a divorce, from the very beginning through the actual trial of your client's case gives your client the opportunity to maintain some level of control over the outcome and solidifies your claim for an award of attorney fees should the case have to be decided by a judge at trial.
Your first opportunity to settle your client's divorce case starts when you serve your client's spouse with the initial divorce paperwork. If appropriate to your client's situation, I have included a letter I draft to be served on my client's spouse at the same time the initial divorce paperwork is being served. Depending on the circumstances, I attempt to reassure the non-client spouse that we are committed to finding solutions to the issues in the divorce that will be agreeable to both spouses. At times, I have included an entire settlement proposal in the letter; assuming we have sufficient information to do so without first obtaining appropriate disclosure and conducting appropriate discovery.
We have delayed the filing of the initial divorce paperwork In cases where we needed additional documentation and/or information before including a settlement offer when serving the initial divorce paperwork. Instead of rushing to court with a divorce filing, we accumulate all the information and documentation and complete an initial disclosure statement which is also served with the settlement offer and initial divorce paperwork.
There are also several ways to settle a contested divorce case. The first, discussed above, is simply writing a letter to the other spouse or his or her attorney. That approach, however, can be ineffective if the other spouse or attorney is not up to speed on the case, is too busy to spend the time evaluating the offer, or simply disagrees with the proposal but fails to communicate the reasons why he or she disagrees. This results in a communicate "roadblock" to settlement. It is not that the two parties cannot ultimately reach an agreement but, rather, the communication simply stops.
When this happens, it may be beneficial to schedule a settlement conference with both parties and their counsel present. This helps stop the "roadblock" to settlement discussions because everyone can freely exchange and discuss their respective positions in an attempt to arrive at some creative solutions to the disagreements. This, typically, only works when everyone participating in the discussion is reasonable.
I tell my clients there are four people who will have an impact on whether a divorce will settle as an uncontested divorce or not. Specifically, both parties and their attorneys. I also tell my clients their chances of reaching a settlement in their divorce case decreases significantly if any one or more of those four people are unreasonable. It takes four reasonable people to settle a divorce. I have seen cases pushed to trial when both of the spouses were reasonable, but one of the spouse's attorneys was the only unreasonable person blocking settlement of the case.
I always evaluate how reasonable the opposing party will be in the divorce. I evaluate how reasonable I expect the opposing counsel to be. I evaluate how reasonable my prospective client will be. If I conclude at least one of these people is going to be unreasonable, I typically opt for writing one written settlement proposal and then scheduling a mediation.
Why Mediation Works so Well
Mediation works best when someone sitting at the table is unreasonable. He or she may be unreasonable because they are angry and simply want to make the other spouse as miserable as possible. This person is either the opposing party or their counsel. The reason it is never my client or me is (1) I don't represent unreasonable people who want to make their spouse's life a living hell; and (2) I am not going to be unreasonable in any divorce case for any amount of money.
The other way a person can be unreasonable is if they simply do not understand the law on a particular issue. This occurs when a client is not adequately advised by their counsel or their counsel simply doesn't grasp the issue. This is where mediation is great.
Involving an experienced third-party divorce attorney makes all the difference when you have an unreasonable person on the other side of a divorce. It takes someone, other than their own attorney (and sometimes to tell the attorney as well), to tell them they are wrong. It is like the moment of divine realization of truth and reality that drives the case to settle.
Hildebrand Law, PC
4900 N Scottsdale Rd
Scottsdale, AZ 85251