Intro to Alternative Dispute Resolution.

In Arizona, a common form of mediation that is utilized in divorce cases is Alternative Dispute Resolution. In this article, I will cover the highlights that I believe are important to understand before going into Alternative Dispute Resolution (aka ADR) and to help you prepare for it. Alternative Dispute Resolution can be extremely effective for settling cases; however, like most things in life, you get out of it that which you put into it.

Alternative Dispute Resolution can mean different things under the Rules of Procedure. For this article, I will be referring to what I believe is the most prevalent form of Alternative Dispute Resolution, which is the formal settlement conference. You can read the entirety of Rule 67.4 here if you like.

First of all, what is Alternative Dispute Resolution?

Again, Alternative Dispute Resolution (which you’ll commonly hear attorneys and judges refer to it as ADR), is a form of mediation. During Alternative Dispute Resolution, you and your spouse, and your attorneys if you have any, will appear before an ADR judge pro tem. Typically, this will be a volunteer attorney, retired judge, or even a current judge or commissioner (although not the judge assigned to your case).

The ADR judge pro tem will serve as a mediator. They do not and cannot force you nor your spouse into any settlement, nor do they decide anything in the case. Their entire purpose is to help facilitate a settlement, even if it’s only a partial settlement.

To help you and your spouse settle the ADR judge pro tem may provide some insight or legal info on your positions. Generally, the idea is the judge pro tem will point out the risks you have and some of the weaknesses of your case. This will help spur you (and your spouse) to compromise further, and settle.

Think about it this way. If you or your spouse are super confident that you’re going to get everything you’re asking for (which is almost always unlikely), then there would be no sense in wanting to compromise and settle. It can be really common for people to have biases that make them believe their position is correct and they cannot rationally believe that a judge would disagree with them or see things another way. Some lawyers can even fall into this trap on particular issues. A judge pro tem can provide a helpful, objective viewpoint on the issues in your case to help you (and your spouse) understand the risks of your case, which may make you understand the value of a potential settlement.

(As a side note, I will point out that the ADR judge pro tem may not always be right. They are fallible too, and their viewpoint on a particular issue may actually be incorrect. So while it’s important to take their two cents into consideration, it shouldn’t be taken as gospel necessarily either).

What happens exactly during ADR?

So we’ve covered that Alternative Dispute Resolution is a form of mediation, and that the mediator (judge pro tem) will help you and your spouse try to settle issues in your case. But you still might be wondering exactly how it works and what happens.

Each judge pro tem will handle it in his/her own way. However, here are some common themes you can likely expect.

At the outset, the judge pro tem will likely meet with everyone together. They’ll likely provide their history so you understand a little about their legal background and qualifications. They’ll also maybe provide some ground rules and perhaps some expectations on how the process will unfold.

After that, it is most common that you and your attorney will be in a different room from your spouse and their attorney. The judge pro tem will then go back and forth to convey settlement offers and talk about your positions on the issues with both sides separately. Honestly, there might be quite a bit of time between when you talk to the judge pro tem. So, be prepared to wait a bit while the judge pro tem talks with your spouse. At least you’ll get to spend some more quality time with your lawyer (awesome, right?).

That being said, you can expect Alternative Dispute Resolution to last approximately 2-3 hours. If the order scheduling ADR doesn’t specify, it is commonly expected that ADR will last around 2 hours, give or take a little. This is something the judge pro tem will probably address at the outset too.

Read and Pay Attention to Your Court Order in Advance.

No, seriously. Go read, and then maybe re-read your court order regarding ADR. If you have Alternative Dispute Resolution set up in your case, chances are that the court entered a specific order scheduling the Alternative Dispute Resolution. Chances are also high that the same scheduling order includes a lot of other orders relating to your Alternative Dispute Resolution date.

With any other court orders it is important to understand those orders and follow those orders. The orders pertaining to Alternative Dispute Resolution are no different. A lot of the other points I touch on in this article will likely be the same or similar to the orders in your case about ADR. However, if anything in this article differs from your court orders, then of course you need to follow your court orders, not the general/typical legal info I’m providing here.

Do I need to say it again? Read and follow your court’s orders regarding ADR.

Make Sure You Have Completed Discovery.

Alternative Dispute Resolution is usually scheduled later on in the life cycle of a case, and it’s often one of the last things scheduled before a final trial. Because of this fact and because the whole point of ADR is to try to settle all of your case, it is imperative that you have completed all the discovery you want to complete beforehand. This way you will have the information you want and need to make informed decisions on the issues in your case, and know whether a particular settlement offer is a good one or not.

Not sure what discovery is? In short, it’s a process during your divorce where you are allowed to make formal requests for information from your spouse, and some other types of requests you can send to third parties, to gather information and documents pertinent to your divorce. To learn more about discovery you can listen to this podcast episode here. If you want to learn how to actually conduct discovery and get all of the financial documents you need to protect your divorce rights, you can learn how with our online course here.

Often, your court order scheduling ADR will also order both parties to complete discovery requests prior to ADR. The court and the judge pro tem both understand how important it is that you have adequate information to be able to properly settle your case. That is why the order is in there. So, if you haven’t completed discovery before ADR, you’ll be at a disadvantage and/or it’s possible that the ADR will get cancelled altogether (which will likely look bad on you if you’re the one that hasn’t completed your discovery efforts).

Prepare your ADR Settlement Statement (or memorandum).

In most cases, your ADR Scheduling order will require that you and your spouse prepare a separate, confidential settlement memorandum. The memorandum is basically a document that outlines the basic info of the case, and addresses all of the contested issues, your position on those issues, and to some extent your legal arguments on those positions. The memorandum is then sent to the judge pro tem who will be serving as the mediator in your Alternative Dispute Resolution.

Think of it this way. The judge pro tem is someone that up to this point has not been involved in your case at all. The judge pro tem is not going to be the judge in your case. So, the judge pro tem really has no knowledge about your case and what the issues are. It would be really difficult for the judge pro tem to provide objective input on your case and help you settle if they don’t really know what your case is about. That is where the separate memorandum comes in as it  really helps them understand what the issues are, your positions on those issues, and why you are maintaining those positions.

Again, look at your specific orders, but chances are you are NOT supposed to file your separate memorandum with the court. The ADR memorandum is typically confidential, and only meant for the judge pro tem to review. If you file it with the court, then it will become part of the court’s record, public information, and accessible by your spouse.

On that note, ADR is a form of mediation and therefore the discussions you have with the mediator are confidential. When discussing your case with the ADR judge pro tem, it can be useful to confirm and clarify that your discussions are confidential. It can also be useful to let them know certain things that they can convey to the other side, and things that they should absolutely not share. This helps the judge pro tem understand what things they can or can’t share when trying to work with your spouse to compromise and reach a settlement.

Getting back to the ADR memorandum, you should remember to prepare your memorandum as it will benefit you in ADR by allowing the judge pro tem to know more about your positions on the issues beforehand, and it’s likely ordered anyways (and you should follow the court’s orders). The memorandum for Alternative Dispute Resolution is generally due a week or so before ADR, but double check and follow your specific orders.

Bring Exhibits with You For References.

Alternative Dispute Resolution is not trial. The judge pro tem is not taking evidence and is not making any binding judgments or findings on the facts or legal issues of your case. However, it can be really helpful and useful to bring with you supporting exhibits (like you would at trial). Generally, it would be too cumbersome and disorganized to bring your entire case file. However, it can be really useful to bring specific documents that directly pertain to an issue or maybe a point of contention about an issue.

For example, if you and your spouse own a house, you might want to bring with you a copy of the deed for the house that shows you and your spouse on the deed. If the judge pro tem says to you that your spouse wants the house and claims it’s his/her house, you can show the judge pro tem the deed and explain your position that it’s community property and should be sold and divided equally. While the judge pro tem won’t take the deed into evidence, or making any binding finding of fact as to the characterization of the house, the judge pro tem can go back to your spouse and press them based on their position based on the deed.

As another example, your spouse may want to trade assets or have each of you take certain accounts to offset each other. If you have documents with you as exhibits to reference showing what those assets are worth, or what funds are in those accounts, then it can help you make an informed decision rather than going blind or off memory alone.

In sum, having exhibits with you to help demonstrate the issues in your case and support your positions will be helpful in Alternative Dispute Resolution. Having the exhibits there can help provide context and support for your positions to the judge pro tem, and can assist you with understanding the overall context and value of settlement offers from your spouse.

Conclusion

Alternative Dispute Resolution, commonly referred to as ADR, is a form of mediation commonly used in divorce cases in Arizona. It involves meeting with a mediator, called a judge pro tem, who will help and assist you and your spouse to settle all, or at least part, of your case. The judge pro tem cannot force any agreements, and they do not making any findings or judgments in your case (unless agreed upon between both parties).

It is critical that you complete discovery beforehand as it’s often required by court order, and it will be necessary to have the information you need to make informed decisions on settlement. If you need to learn how to conduct discovery and how to review and analyze financial documents, you can learn how through our online course here.

It will be important to prepare and submit a separate memorandum to update the ADR judge pro tem on the case history, contested issues, and your positions on those issues. It will also be important to take with you pertinent exhibits to support and provide context for your positions on the issues, even if those exhibits aren’t being used as evidence (since ADR is not an evidentiary hearing or trial, it’s mediation).

If you and your spouse do agree on any settlements, the ADR judge pro tem will read those agreements on the record (which will be recorded). The judge pro tem will then confirm whether you heard and understood the agreements and that you are in fact agreeing to them. Really make sure that you hear and understand before confirming. Any agreements read on the record and agreed to will become binding and court orders. It can be difficult to impossible to undo an agreement reached at ADR, so be sure that you agree and that the agreement is stated accurately. If you’d like to learn more about binding agreements, you can listen to this podcast episode here.

Best of luck with your Alternative Dispute Resolution. Follow your court’s orders. Prepare well. And hopefully, you’ll be able to reach a good settlement with your spouse.