Dallas, TX asked in Divorce, Family Law, Child Custody and Domestic Violence for Arizona

Q: How do I present new evidence in a mediation case?

Meditation hearing is coming up in August and I want to change to asking for full custody since my child expressed to me that there has been physical abuse towards them by the other parent. The other parent has already been physical towards me which documented by police response. I have called DCS for help in regards to the comments made by my child and I do not trust the other parent to be truthful at all.

2 Lawyer Answers
Todd B. Kotler
Todd B. Kotler

A: Note that I practice law in OHIO and do NOT practice in Az. I am an officer on the Ohio State Bar Association's Dispute Resolution Committee and have over 50 hours of mediation training from the Ohio Supreme Court's Judicial College.

Mediation is not a forum for presenting "evidence". It is a facilitated negotiation, through a neutral third party called a mediator. The mediator cannot compel a result and the statements made during mediation cannot be used in a later hearing. According to ARS Sec 12-2238, Communications made, materials created for or used and acts occurring during a mediation are confidential and may not be discovered or admitted into evidence unless one of the following exceptions is met:

1. All of the parties to the mediation agree to the disclosure.

2. The communication, material or act is relevant to a claim or defense made by a party to the mediation against the mediator or the mediation program arising out of a breach of a legal obligation owed by the mediator to the party.

3. The disclosure is required by statute.

4. The disclosure is necessary to enforce an agreement to mediate.

5. The disclosure is made in a report to a law enforcement officer, the department of child safety or adult protective services by a court appointed mediator who reasonably believes that a minor or vulnerable adult is or has been a victim of abuse, child abuse, neglect, exploitation, physical injury or a reportable offense.

You can ask for anything you want in mediation. Of course, the opposing party does not have to agree to anything. I recommend working with your attorney to prepare for trial. I also recommend you review your state's mediation statutes.

Randi Sirlin
Randi Sirlin
  • Phoenix, AZ
  • Licensed in Arizona

A: If you are doing mediation, you can first alert the other side that you are changing your position and if it is a problem, you can file a Motion to Amend either your answer or your response. You should also seek out an experienced family law attorney, as you will be expected to know all of the rules of procedure, rules of evidence and case law without an attorney.

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