Before we dive into the different avenues to get to Mediation, I want to explain the difference between Mediation and Arbitration. Mediation and Arbitration are often assumed to be the same thing, but they are not.
Mediation is a settlement process that takes place with the assistance of a neutral, third-party mediator. In order to reach a resolution, all parties must agree. The mediator cannot and will not make decisions for either party.
Arbitration, on the other hand, while also a settlement process, is very similar to trial, without actually going to court. Arbitration has litigation elements such as discovery, testimony, and one or more arbitrators who listen to the facts, review the evidence and then the arbitrator makes a final decision or ruling.
Mediation can be done in two ways:
In private mediation, both parties agree to participate and the parties must agree on the mediator. There are several mediators out there with different experiences and areas of focus in their practice. Picking the right mediator is a key decision and can affect whether the mediation is actually successful. When using a private mediator you are able to schedule the mediation when it is convenient for both parties’ schedules, but there is a cost of the mediator’s time. When using private mediation it is recommended that each party pay half of the cost of the mediation to ensure that both parties are financially invested in the process and want to work toward resolution.
The Court may order this type of mediation when the parties are appearing without attorneys or cannot afford private mediation. It is commonly referred to as an Alternative Dispute Resolution/Settlement Conference (“ADR”). Similar to private mediation, ADR is still with a neutral third party mediator (in Maricopa County it is usually a lawyer volunteering his/her time) and the goal is still that both parties will come to an agreement. However, with ADR you will be given a date and time to go and the mediator is not someone that you choose but rather someone that is randomly drawn from the Court’s own list. The benefit of ADR, compared to private mediation, is that it is free of charge to the parties.
The goal of all mediation is to find a solution and/or settlement between two parties in conflict to avoid having to go to trial. Mediation is a very useful tool and it is the most efficient option for a “quick” and cost-effective resolution.
If you are considering mediation to resolve a pending dispute and you would like to work with one of our experienced divorce attorneys, please call OWENS & PERKINS at (480) 630-2464 to schedule your free 30-minute consultation.