By: Nanette Warner, Esq.
Mediation is frequently used to resolve family law cases, saving the time, expense and uncertainty associated with trial. The Arizona Rules of Family Law Procedure require that before a case goes to trial, the parties must avail themselves to some form of alternative dispute resolution (ADR). Private mediation or a court-ordered settlement conference with a judge or volunteer judge pro tempore are frequently used ADR. Where custody and/ or parenting time issues are unresolved, in Pima County, the parents are required to attend mediation with a Conciliation Court mediator.
A privately retained mediator is often considered a superior means for resolving more complex family law cases. Court-ordered settlement conferences are generally limited to one hour. If a judge’s or judge pro tempore’s schedule permits, additional time may be allotted for settlement conferences. However, the time is never sufficient where there are multiple and complex issues. A private mediator is able to work with the parties and their attorneys to get a complete agreement on all issues at a cost far less than the cost of trial.
In preparing a family law case, an attorney will often consult with experts depending on the issues. If there are property and financial issues, an attorney may consult with an accountant, financial advisor, or appraisers. If the parties own a business or have an interest in a business, a person specially trained in business evaluation may be retained. If custody or parenting time is an issue, a custody evaluator or another mental health expert may be consulted. At times, attorneys will agree to jointly retain one expert in an area. The decision to jointly retain an expert depends on the case issues, the experience and reputation of the expert proposed to be retained, the relationship between the attorneys and the expert and the cost involved of hiring the expert in relationship to the value of property interest at issue. Whether an expert is jointly retained by the parties or an expert retained by one party or each party retains their separate expert, his/her presence at mediation can often be pivotal to resolving the case without trial.
In family law cases, mediation often allows for more flexible and creative means of resolving property and maintenance issues than does a trial. It puts the parties squarely in control. Therefore, when discussing property division, the presence of a knowledgeable expert can be pivotal to resolving the issues. Because the expert charges for his/her time, the decision to have an expert present at the mediation will depend on the issue, the value and complexity of the property at issue, the contributions the expert can make towards resolving the case and the cost of having an expert present. If the expert is needed only on specific inquiries, the attorney should consider having the expert appear by phone for consultation during the mediation.
If each side has retained experts on the same issue, such as the value of a community business or real estate, it is helpful to have both experts present at the mediation, even if they have written reports. If the experts professionally discuss the basis for their opinions and factors considered, it helps to give the mediator, attorneys and parties insight and suggest possible areas of compromise. Credible accountants, business evaluators and appraisers frequently are able to identify ways of resolving issues, particularly where tax consequences are involved. The experts may be able to agree on key points even where it initially appeared that they disagreed. Even where all issues are not resolved at mediation, the parties can gain insight as to how an expert’s opinion might be viewed by the trial judge.
An expert on tax can be helpful to the mediation process by assessing and discussing with the mediator, attorneys and the parties, the tax consequences and suggesting the timing of sales or various distributions of real and personal property, division of retirement assets or the length and amount of spousal maintenance. If an expert has been brought by one party, the mediator should consider asking that party, if the expert could share his/her views and ideas for resolution directly with the other party and attorney and address their concerns.
Although financial experts have been used most often in mediations, when custody and parenting time issues are the subject of mediation, attorneys and parties should consider having any consulting custody evaluators or mental health experts available during mediation. While custody evaluators would be reluctant to attend a mediation, they would probably agree consulted by phone to assist the parties and the mediator in reaching a resolution and to further discuss their conclusions and specific recommendations, concerning custody, parenting time or services for parents or children.
In making a decision on custody and parenting time, the Court must consider the mental and physical health of all individuals involved in the custody decision, including the parents and the children. Input from a treating counselor during the mediation could be helpful to developing a parenting plan that would avoid a difficult and potentially damaging custody trial.
If an expert attends mediation, at the beginning of the mediation, the mediator should clarify the role that the expert will play in the mediation to the parties, the attorneys and the expert. The mediator must clarify if the expert will only assist the retaining party or will communicate with the other side.
In summary, where economically feasible, the presence and contributions of experts at mediation has a positive effect on assisting the parties to understand the benefits and consequences of the potential resolutions and assists the parties and the mediator in drafting agreements that meet the requirements of the law and needs of the parties.