Maricopa County Justice Court System
The mediation program used to be with administered through the Superior Court through the Alternative Dispute Resolution department. However, it is now administered by the Justice Courts due to lost funding. The Justice Courts (for civil claims, not small claims) follow the Arizona Rules of Civil Procedure. The difference in the Justice Courts system is that each individual precinct judge decides whether to use mediation in their court. Currently, there are only 6 out of the 25 Maricopa County Justice Courts that mandate mediation. Some of the courts will allow for the parties to ask for mediation by way of a motion or just simply asking the judge. The current program is being revamped and hopefully the Justice Courts will start to implement the mediation program again.
Maricopa County Superior Court
You should know that if you file a civil complaint in the Superior Court, you and the other party are required to consider using mediation or another form of alternative dispute resolution, and then report to the court about your discussions. The following rule sets out this requirement:
The mediation program used to be with administered through the Superior Court through the Alternative Dispute Resolution department. However, it is now administered by the Justice Courts due to lost funding. The Justice Courts (for civil claims, not small claims) follow the Arizona Rules of Civil Procedure. The difference in the Justice Courts system is that each individual precinct judge decides whether to use mediation in their court. Currently, there are only 6 out of the 25 Maricopa County Justice Courts that mandate mediation. Some of the courts will allow for the parties to ask for mediation by way of a motion or just simply asking the judge. The current program is being revamped and hopefully the Justice Courts will start to implement the mediation program again.
Maricopa County Superior Court
You should know that if you file a civil complaint in the Superior Court, you and the other party are required to consider using mediation or another form of alternative dispute resolution, and then report to the court about your discussions. The following rule sets out this requirement:
(1) Upon motion of any party, or upon its own initiative after consultation with the parties, the court may direct the parties in any action to submit the dispute which is the subject matter of the action to an alternative dispute resolution program created or authorized by appropriate local court rules.
(2) The Parties' Duty to Consider ADR, and to Confer and Report.(A) No later than 90 days following the first appearance of a defendant, the parties shall confer, either in person or by telephone, about:(1) the possibilities for a prompt settlement or resolution of the case; and(2) whether they might benefit from participating in some alternative dispute resolution ("ADR") process, the type of process that would be most appropriate in their case, the selection of an ADR service provider and the scheduling of the proceedings.(B) The attorneys of record and all unrepresented parties who have appeared in the case are jointly responsible for attempting in good faith to settle the case or agree on an ADR process and for reporting the outcome of their conference to the court. Within 30 days after their conference, the parties shall inform the court by means of a text prescribed in an official form promulgated pursuant to Rule 84 of the following:(1) if the parties have agreed to use a specific ADR process, the type of ADR process to be used, the name and address of the ADR service provider they will use and the date by which the ADR proceedings will be completed;(2) if the parties have not agreed to use a specific ADR process the position of each party as to the type of ADR process that is appropriate for their circumstances or, in the alternative, why ADR is not appropriate; and(3) whether any party requests that the court conduct a conference to consider ADR.(C) Unless the parties have agreed to use a specific ADR process, the court may direct the parties, the attorneys for the parties and, if appropriate, representatives of the parties having authority to settle, to discuss with a court-appointed ADR specialist, either in person or by telephone, whether ADR is appropriate and the types of ADR processes that might benefit their case.
(2) The Parties' Duty to Consider ADR, and to Confer and Report.(A) No later than 90 days following the first appearance of a defendant, the parties shall confer, either in person or by telephone, about:(1) the possibilities for a prompt settlement or resolution of the case; and(2) whether they might benefit from participating in some alternative dispute resolution ("ADR") process, the type of process that would be most appropriate in their case, the selection of an ADR service provider and the scheduling of the proceedings.(B) The attorneys of record and all unrepresented parties who have appeared in the case are jointly responsible for attempting in good faith to settle the case or agree on an ADR process and for reporting the outcome of their conference to the court. Within 30 days after their conference, the parties shall inform the court by means of a text prescribed in an official form promulgated pursuant to Rule 84 of the following:(1) if the parties have agreed to use a specific ADR process, the type of ADR process to be used, the name and address of the ADR service provider they will use and the date by which the ADR proceedings will be completed;(2) if the parties have not agreed to use a specific ADR process the position of each party as to the type of ADR process that is appropriate for their circumstances or, in the alternative, why ADR is not appropriate; and(3) whether any party requests that the court conduct a conference to consider ADR.(C) Unless the parties have agreed to use a specific ADR process, the court may direct the parties, the attorneys for the parties and, if appropriate, representatives of the parties having authority to settle, to discuss with a court-appointed ADR specialist, either in person or by telephone, whether ADR is appropriate and the types of ADR processes that might benefit their case.
Arizona Rules of Family Law Procedure Rule 67. Mediation, Arbitration, Settlement Conferences, and Other Dispute Resolution Processes Outside of Conciliation Court Services
A. Confidentiality; Ex parte Communications. Mediation conferences shall be held in private, and all communications, verbal or written, shall be confidential. The mediator shall not file any written report or statement with the court, except as provided by subdivision B(6). Unless specifically stated otherwise in these rules, the provisions of A.R.S. § 12-2238 shall apply to any mediation conference held in conformance with this rule. The mediator shall not have any ex parte communication with the judge or commissioner assigned to a case, except as provided in subdivision B(7). The mediator may not conduct any other form of dispute resolution process in the same case, unless agreed to by the parties and approved by the court.
B. Mediation. Any issues in dispute may be subject to mediation. Mediation may be conducted by a private mediator agreed upon by the parties, a mediator assigned by the court from a roster of mediators maintained by the court, or a mediator participating in an ADR process overseen, administered, or approved by the court.
1. Private Mediation; Roster of Mediator; Authority of Judges ProTempore Acting as Private Mediators.
a. The parties may select a private mediator by agreement. The parties or counsel, if any, shall sign and file with the court a written notice that private mediation will take place, stating the name of the mediator and the date set for the initial mediation conference. The parties may request the court to choose an independent mediator from a list of mediators supplied by them or from a roster of mediators maintained by the court. The parties shall contract directly with the private mediator and be responsible for payment of the fees for such mediation. Unless the court orders or the parties agree otherwise, the cost of mediation shall be equally shared by the parties. The mediator may not conduct any subsequent family assessment or evaluation in the same case. Any binding agreement that is reached by the parties shall comply with Rule 69. As part of any agreement reached, the parties shall acknowledge that the agreement was entered into by them voluntarily and without threat or undue influence, after full disclosure of all relevant facts and information, that it is intended to be a binding agreement, and that it is fair and equitable, and, where there are minor children common to the parties, that it is in the best interests of the children.-
b. Upon request of the parties, the court may appoint an active judge pro tempore in good standing to conduct a private mediation with the parties. Any such request shall be accompanied by an affidavit signed by the judge pro tempore swearing under oath that he or she is an active judge pro tempore in good standing appointed by the Supreme Court at the request of the Presiding Judge of the Superior Court of the County. The Order appointing the judge pro tempore to conduct such a private mediation may authorize him or her to approve binding agreements made by the parties in conformance with Rule 69, to make any findings necessary to approve the agreements of the parties pursuant to A.R.S. § 25-317, to make the jurisdictional findings pursuant to A.R.S. § 25-312 or A.R.S. § 25-313 and to sign any Decree of Dissolution presented that conforms to the agreements reached by the parties. Any Decree of Dissolution signed by a judge pro tempore pursuant to such authority shall have the same force and effect as a Decree of Dissolution signed by a judge or commissioner of the court and the Decree shall be immediately delivered to the judge appointing the judge pro tempore for filing and entry into the minutes of the court. A judge pro tempore acting as a private mediator may be paid for his or her services as a private mediator, but shall not seek remuneration nor shall be paid anything of value by the parties for his or her service as a judge pro tempore for approving such agreements or for signing and entering a Decree of Dissolution.
2. Commencement of Mediation. On its own motion, or on motion of either or both parties to a dispute, the court may order a matter referred to mediation. The court may decline to order a matter referred to mediation if it appears that mediation is inappropriate for reasons such as parental unfitness, substance abuse, mental incapacity, domestic violence, or other good cause, or that mediation will cause undue delay.
a. In a proceeding concerning custody or parenting time of a child, if an order of protection is in effect involving the parties or there is a finding by the court of any conduct that would form the basis for an order of protection, the court may order mediation or refer the parties to mediation only if there are policies and procedures in place that protect the victim from harm, harassment, or intimidation.
b. Every party shall be notified in writing or orally in open court prior to mediation of the ability to request a waiver of mediation or to request that reasonable procedures be in place at the mediation to protect a victim of domestic violence, as determined by the court. Neither party shall be required to appear for mediation pending determination of this matter.
c. The mediator shall reject for mediation or terminate mediation in any case the mediator deems mediation to be inappropriate because of domestic violence.
4. Prohibition against Default. Upon entry of an order or referral to mediation, neither party to the dispute may apply for entry of default against the other party until the mediator files a report with the court advising the court that mediation has concluded, unless otherwise ordered by the court.
5. Scheduling of Mediation Conferences; Persons Who May Attend. When an order or referral to mediation has been entered, the mediator will schedule a conjoint or individual conference or conferences that each party must attend. No scheduled trial or hearing shall be continued for failure to complete mediation without order of the court. Counsel for a party shall not be excluded from a mediation conference unless agreed to by the party and counsel. When appropriate, the mediator may, in his or her sole discretion, permit persons other than a party and counsel to attend or participate in a mediation conference if they agree in writing to be bound by the confidentiality provisions of this rule.
6. Pre-Mediation Statement. The mediator may require the parties to prepare a Pre-Mediation Statement for the mediator setting forth the information contained in subdivision D(2). The court may impose sanctions as permitted by Rule 71 for failure of a party to submit a Pre-Mediation Statement as requested by the mediator. The Pre-Mediation Statement shall not be filed with the court.
7. Report to the Court; Agreements. If the court refers or orders a case to mediation, the parties shall notify the court that the mediation has concluded and advise the court of any agreements reached within ten (10) days after the conclusion of the mediation and not later than ten (10) days prior to the date set for trial or hearing. All binding agreements reached by the parties shall comply with Rule 69. As part of any agreement reached, the parties shall acknowledge that the agreement was entered into by them voluntarily and without undue influence, after full disclosure of all relevant facts and information, and is intended to be a final binding agreement pursuant to these rules, and that it is fair, equitable and in the best interests of the children. If no or partial agreement is reached during mediation, the mediator shall file a brief report with the court stating that the parties met and attempted to resolve their differences but the mediation was unsuccessful. The report shall also state any agreements reached and the issues remaining for resolution. The mediator shall not report the positions of the parties and shall not comment upon or offer any opinion about the position of any party. The mediator may also advise the court if the parties or the mediator believe that further mediation would be helpful in order to resolve the remaining issues.
8. Failure to Appear. After entry of an order referring a matter for mediation, the parties are required to appear at all mediation conferences scheduled by the mediator. If one or both parties fail to appear, the mediator shall report to the court the identity of each person who failed to appear, and the court may impose sanctions as permitted by Rule 71(A).
9. Participation in the Process; Reports to the Court; Sanctions. Although a party is required to appear for a mediation conference, participation in mediation is voluntary. The mediator may advise the court in writing about the schedule for mediation and any procedural matter related to the mediation, so long as the substance of what was said or done by the parties or their counsel during mediation remains confidential. Other than reporting to the court about matters set forth in this rule, unless otherwise agreed by the parties or required or permitted by law, the mediator shall not report to the court about anything that was said or done before or during the mediation. For violation of this rule, the court may impose appropriate sanctions as permitted by Rule 71(A).
Arizona Rules of Family Law Procedure Rule 68. Conciliation Court Services; Counseling, Mandatory Mediation, Assessment or Evaluation and Other Services
B. Mediation/ADR. All family law cases that involve a controversy over child custody or parenting time shall be subject to mediation or other alternative dispute resolution or process provided for in local rules. Unless the parties agree to mediation by a private mediator, the court or conciliation services shall determine whether mediation or ADR services are appropriate in a particular case. The court or conciliation services may deem mediation inappropriate for reasons such as parental unfitness, substance abuse, mental incapacity, domestic violence, or other good cause. The mediator may not conduct any subsequent family assessment or evaluation in the same case.
1. Commencement. If there is a disagreement between the parties concerning child custody or parenting time, either or both parties may file a motion or request for mediation or ADR services with the clerk of the court. The requesting party shall provide a copy of the request to the assigned judge and the conciliation court. An order for mediation or ADR services may also be made on the court's own motion.2. Domestic Violence.
a. In a proceeding concerning custody or parenting time of a child, if an order of protection is in effect involving the parties or there is a finding by the court of any conduct that would form the basis for an order of protection, the court may order mediation or ADR services or refer the parties to mediation only if there are policies and procedures in place that protect the victim from harm, harassment, or intimidation.
b. Every party shall be notified in writing or orally in open court prior to mediation or ADR services to request a waiver of mediation or to request that reasonable procedures be in place at the mediation to protect a victim of domestic violence as determined by the court or conciliation services. Neither party shall be required to appear for mediation pending determination of this matter.
c. Conciliation services shall reject for mediation or terminate mediation in any case if the mediator deems mediation to be inappropriate because of domestic violence.
3. Confidentiality. All communications, both oral and written, made by a party in mediation shall be confidential and not divulged to third parties, in accordance with Arizona statutes and court rules.
4. Mediation Conferences. When a matter has been ordered or referred to mediation, an individual or conjoint conference or conferences will be scheduled by Conciliation Services that each party must attend. The mediator shall be entitled to meet with either or both parties in a confidential conference to determine the appropriateness of mediation prior to commencement of the process. Counsel are not permitted to attend mediation conferences unless approved by the mediator or conciliation court policy. The mediator may permit any person to attend a conference that the mediator, in his or her sole discretion, believes is appropriate. Any person not a party to the action attending mediation shall sign an agreement to be bound by the confidentiality provisions of this rule.
5. Reports to the Court. At the conclusion of mediation by conciliation services, the mediator shall file a report with the court setting forth any agreements, full or partial, reached by the parties, and identifying the areas of disagreement, but shall not identify the parties' position regarding areas of disagreement. If no agreements are reached in mediation, the mediator's report to the court will advise the court only that the mediation was unsuccessful in resolving the dispute.
6. Agreements, Signature of Counsel, Notice to Counsel, and Notice of Objection. Any agreements reached as a result of mediation by conciliation services must be placed in writing, following either procedure set forth below.
a. The agreement shall be signed by the parties and signed and approved as to form by the attorneys, if any, and submitted to the court for approval no later than thirty (30) days from the date of signing.
b. Alternatively, the agreement shall be signed by the parties, and conciliation services shall submit a copy of the agreement to the parties' attorneys, who shall have thirty (30) days from the date of signing to file a Notice of Objection to the agreement, unless a different period is specified by the court or in correspondence transmitting the agreement. If no timely objection is filed, the agreement will be forwarded to the court with a proposed order for the court's consideration and signature. Any Notice of Objection to the Agreement must be filed with the court, a copy provided to conciliation services and the other party's attorney or, if the party is not represented, to the party. The Notice of Objection shall not state the reasons for the objections. Such objections shall, however, be set forth in separate correspondence to the party's attorney, or if the party is not represented, to the party. Upon receipt of a Notice of Objection, conciliation services will terminate the mediation and issue a memorandum to the court indicating that as a result of the objection being received, there is no agreement in the matter.
