In mediation, the process is different than litigation. The spouses meet with the mediator in approximately three to five sessions, over a period of at least a month, or longer if the parties desire. Without pressure, the spouses look at each issue to try to determine their own underlying interests and to identify common ground shared with the other spouse.
For example, a parenting plan may be tentatively agreed to and tried, then changed and then tried and changed again without making any final commitment. While the mediation is ongoing, all agreements are tentative, and there is full opportunity for experimentation.
The Comprehensive Mediated Settlement Agreement (CMSA)
When final agreement is reached on all issues, the CMSA is prepared, reviewed and perhaps amended and finally signed by both spouses. While perhaps not getting everything she or he would have liked, or initially had in mind, each spouse has determined that every provision is at least something she or he can live with.
The mediator, if a Licensed Arizona attorney, prepares the CMSA that conforms to the requirements of law to form an enforceable contract and handles all of the court filings and paperwork.
In Arizona family law, the expressed intention of the spouses in the CMSA can be important or even determinative of whether any post-judgment motion to amend a portion of the judgment will be considered by the court. Thus, by their wording of the CMSA, the spouses can get finality, or flexibility to take account of unforeseeable circumstances, as they desire.
Why Mediation Works
When they sign the CMSA, the spouses can take satisfaction in reaching agreements which make sense for both of them, for their children, for the extended family, and for preservation of community assets. By choosing to negotiate with each other under the mediator’s guidance, instead of hiring a lawyer to make “winning” arguments to a judge, they have achieved an informed agreement that is carefully worded and workable, and therefore unlikely to result in post-judgment disagreement and litigation, i.e., an agreement that “sticks.”