If you're facing a divorce, you're no doubt looking for ways to make the process less expensive and stressful. One important way to do that is by using mediation—meeting with a trained, neutral professional who will help you and your spouse work out solutions to your disputes. Here's what you need to know about how divorce mediation works in Arizona.
You and your spouse can choose to try mediation at any stage in the process of ending your marriage, including after your divorce is final.
If you and your spouse can reach a marital settlement agreement (also known in Arizona as a separation agreement) before you file your divorce papers, you'll be able to file for an uncontested divorce in Arizona —and take advantage the streamlined procedure for "divorce by consent" in some Arizona counties.
The separation agreement should cover all of the key issues involved in ending your marriage, including:
If you're having trouble agreeing with your spouse about any or all of these issues, mediation can help. And when the process leads to any areas of agreement, the mediator will generally prepare a written document that reflects those agreements. Some mediation services might even help with the process of filing for divorce.
If you or your spouse weren't ready for mediation before your divorce started, that hesitancy might fade once your case moves along in the legal system. For instance, some people are more open to negotiating a settlement after more information has come to light during the discovery process—which provides legal tools for getting evidence from the other spouse (such as hidden assets) or from experts like appraisers or child custody evaluators.
If you don't try mediation on your own and have disagreements with your spouse over child custody issues, a judge may order you to mediate those issues (more on that below).
A final divorce doesn't necessarily end disagreements with your ex—especially if you're still coparenting or making support payments. These disagreements typically come up when one parent wants to move away with the children, make changes to the parenting schedule, or modify support payments.
If you and your spouse can't agree on a modification to a provision in your divorce judgment, mediation can help you avoid expensive legal fights over the issue. Here again, a judge may require that you mediate custody disputes.
In most divorce cases that involve disagreements over parents' time with their children (physical custody) or decision-making rights (legal custody), judges in Arizona will order the parents to mediate those custody issues. The same is true for other legal cases involving these disputes, such as custody cases filed by unmarried or already-divorced parents.
When a judge has ordered you to participate in custody mediation, you and your spouse may either:
Unless you've already decided to use a private mediator, you and your spouse will be required to attend an initial conference for the purpose of determining whether mediation would be appropriate in your case (more on that decision below).
You may also request court-sponsored mediation of custody issues before or soon after you file for divorce in Arizona. (Ariz. Rules Fam. Law Proc., rule 68 (2022).)
The cost of divorce mediation will depend on your circumstances, including:
Depending on the county in Arizona, Conciliation Services will charge a modest fee (such as $100 for one session) or no fee at all for a custody mediation session, whether you've requested it or a judge has ordered you to mediate your dispute. When there is a charge, you might be able to get a fee waiver or deferral.
You and your spouse may always agree to use a private mediator or mediation service. The cost can vary widely. Mediators who are also attorneys typically charge about $250-$500 an hour. The hourly rates are often lower for mediators with other kinds of training or certification. Most mediation services (and some individual mediators) charge a flat fee for a certain number of sessions. But if you need more time, they generally will let you pay extra for another hour or more. They might also offer additional services, such as help with preparing and filing the paperwork to get your divorce.
Your final bill for private mediation will depend on how many hours or sessions you'll need to resolve all of the issues in your divorce. The total cost of divorce mediation typically ranges from about $3,000 to $8,000. If that seems high, it may help to know that each spouse will usually only pay half of the total. In fact, Arizona court rules require spouses to share the cost of private mediation equally, unless they both agree otherwise or the court orders otherwise. (Ariz. Rules Fam. Law Proc., rule 67.3(f) (2022).)
It's also worth pointing out that the cost of divorce is almost always more when you and your spouse each hire your own lawyers—and much more if you have to go to trial to resolve your disputes. Moreover, you have more control over the outcome of your divorce with mediation than if a judge makes the decisions for you.
Even if you have the option of getting low-cost custody mediation from the court's Conciliation Services, there are reasons you might choose to use a private mediator instead. For example:
In order for divorce mediation to work, both you and your spouse should feel free to say what you want and voice your opinions without worrying about being pressured, bullied, or even abused. That's why mediation is almost never appropriate if you're experiencing domestic violence or abuse in your marriage.
Other circumstances could also get in the way of successful mediation, including:
When judges or Conciliation Services mediators are considering whether to order mediation of custody issues, they may decide that it would be inappropriate in cases involving domestic violence, substance abuse, parental unfitness, or mental incapacity. Also, spouses have the right to request a waiver of mandatory mediation. (Ariz. Rules Fam. Law Proc., rule 68 (2022).)
If you choose to go ahead with mediation despite a history of verbal or physical abuse from your spouse, you can ask for protective measures, such as separate meetings with the mediator (sometimes known as "shuttle mediation"). Even with online mediation, you may feel safer and more confident when you meet with the mediator separately from your spouse.
To make the most of your time with a mediator, you should do some preparation in advance. Collect information and documents related to the disputes in your divorce, such as financial records and a list of marital and separate property (with values and amounts). Some mediators will ask for this information as part of the initial intake process. Mediation will also be more effective if you've spent some time thinking about your goals and what you want out of the process.
The actual mediation usually follows the same general steps or stages:
The mediator won't give you legal advice or pressure you into any agreements. Instead, mediators are trained to guide you through the process of clarifying the issues, coming up with possible solutions, and negotiating compromises that work for both you and your spouse.
When you're getting court-sponsored mediation of custody issues in Arizona, your divorce case will generally be on hold for 60 days, to allow time for scheduling and attending the mediation sessions. If you request mediation with Conciliation Services before filing your initial divorce papers, that means that neither you nor your spouse may file for divorce until the 60-day period is up. If you've already filed for divorce when you request or are referred to court-sponsored mediation, it means that your case won't move forward for the next 60 days. However, the judge may lift the stay or grant a one-time extension. The judge may also issue any temporary orders that are needed in your case. (Ariz. Rules Fam. Law Proc., rule 68(b)(4) (2022).)
All mediation in Arizona is confidential, whether it's voluntary or court-ordered, and whether it's with a private mediator or Conciliation Services. No one—not you, your spouse, or the mediator—is allowed to disclose to anyone (even a judge) anything that was said or any written material shared as part of the mediation process, except for a signed, written agreement that was reached during mediation. There are a few other exceptions to this rule, including:
After the mediation is over, the mediator must report to the judge on any agreements the spouses reached and the general nature of any remaining unresolved issues (but not the spouses' positions on those issues). Mediators will also let the judge know when a spouse hasn't showed up for a scheduled mediation conference. (Ariz. Rev. Stat. § 12-2238; Ariz. Rules Fam. Law Proc., rules 67.3, 68(c) (2022).)
At the conclusion of mediation, the mediator will generally provide you with a written document (sometimes called a "memorandum of understanding," or MOU) that reflects any agreements you and your spouse reached during the process.
You may use the MOU as part of your complete separation agreement. But it's a good idea to have a lawyer review the agreement to make sure you haven't missed anything or given up your legal rights. And if your agreement includes splitting 401(k) accounts or pensions, you'll almost certainly need an expert prepare the special order (known as a "qualified domestic relations order," or QDRO) you'll need for the plan administrator.
If you reached a complete settlement agreement in mediation before starting the official divorce process, you'll then need to prepare and file your divorce papers in the Arizona courts. (Or you can file for divorce online and get help with the filing process.)
In Arizona counties with a streamlined process for divorce by consent decree, you may be able to get your final divorce decree without having to attend a hearing—but you'll have to wait at least 60 days before submitting your final paperwork, including a consent decree that reflects the provisions in your separation agreement. The procedure is a bit different in Arizona counties that use the default divorce process for uncontested divorces, so check with the court clerk for detailed information on how it works in the county where you filed for divorce. (Ariz. Rev. Stat. § 25-329; Ariz. Rules Fam. Law Proc., rule 45 (2022).)
You never have to agree to anything in mediation, even when a judge has ordered you to participate in the process. If you don't reach a separation agreement that covers all of the issues in your divorce—whether in early mediation or later on during the legal proceedings (typically through your lawyers)—you'll need to have a divorce trial to get a judge rule on any remaining unresolved issues in your case.