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Utah Mediation

Utah Mediation.JPG
Utah Mediation
Utah Mediation.JPG
Utah Mediation

Utah Mediation

If you are involved in a contested family law case in Utah the court will likely require you to participate in mediation before going to final trial. You may even be required to attend mediation before you are allowed to file a lawsuit with the court. (This is commonplace when you are seeking to modify a pre-existing order).

Mediation is a collaborative problem solving process whereby each side sits down with a neutral, independent third-party (the mediator) whose job is to facilitate a productive dialogue with the other side in hopes of reaching a mutually satisfactory solution to your case. The mediator accomplishes this by getting each side to discuss not just what they want but why they want it, what they are willing to give the other side in order to gain what is most important to themselves, and serve as a proverbial “reality check” to both sides if they have unreasonable expectations about what they are likely to achieve if they do not settle in mediation and take their case to trial. Mediation also has the benefit of providing you with independent feedback on what aspects of your case seem strong and which are weak which is valuable information you can use to improve your case before it actually goes in front of a judge at some point. Generally speaking, mediation allows you to resolve your case quickly, at a fraction of the cost of taking it to trial before a judge, is less stressful than the adversarial court process, and encourages you to have a positive relationship with the other side (rather than coming out as mortal enemies for the rest of your lives). The mediation process is not like trial (although there are similarities). First and foremost, almost everything that gets discussed in mediation is confidential and cannot be repeated in court which is intended to encourage the parties to be open and candid about the facts of the case and what they are willing to offer each other to resolve it. (There are limited exceptions to this rule such as if either side threats the other with violence, discloses a previously unreported claim of child or elder abuse, or is engaged in computer crimes).

Second, because there is not a judge deciding your case in mediation the focus is necessarily on persuading the other side to agree to terms that are favourable to you rather than a third-party. It is helpful but not always necessary to bring exhibits proving the facts of your case. But if your case involves any financial issues then it is imperative for each side to provide financial disclosures concerning whatever is in dispute (income, expenses, assets, debts, etc.). Third, because mediation is conducted in a collaborative rather than adversarial setting it is generally unproductive to focus on putting the other side down rather than building yourself up. In this regard family law cases are different than other lawsuits because regardless of the merits of your case you are likely going to have to keep dealing with the other side for years to come (especially if you have a child with them). While no one expects parties to leave mediation as friends, it is not helpful to anyone involved in the process to leave as enemies. As the saying goes, you catch more flies with honey than you do with vinegar. Your attorney’s role in mediation is that of advocate, advisor, and draftsman. First, even though mediation is a collaborative process often necessitating compromise on both side’s part it is our job to get you the best outcome we can given the facts, law, and personality dynamics of the parties. We accomplish this by advocating the justice and fairness of your position to the mediator (and by extension the other side) and highlighting the strengths of your case while noting those issues you are willing to compromise on to reach a resolution. We fulfil our advisory role by sharing our opinion of the reasonableness of each side’s position in light of the range of possible outcomes if the case goes to trial instead of settling.

After all, you probably do not want to settle for less than what you’d get in court and likewise do not want to anger your judge by asking for something unreasonable or unlawful. But it is not always clear what is “reasonable” and “lawful” under the circumstances. One of the benefits of having an attorney at your side is having someone to constantly advise you on what the law is and how your judge is likely to rule if you cannot settle things. Our advisory role also entails exploring creative solutions to problems in ways you may not get if the case went before the judge. Lastly, we serve as a draftsman by ensuring any written agreement you reach in mediation completely and accurately reflects what you agreed to, will be legally enforceable, and is free of ambiguities that could cause problems in the future. Because we handle these kind of cases all the time we are able to draw upon a wealth of practical experience and knowledge to anticipate and head off problems you do not even know could exist until it is too late. (In fact, our office gets a lot of business from clients who went to mediation without attorneys and signed an agreement that, while seemingly fair at the time, was filled with ambiguities and unfavourable terms that caused even more fighting later on).

Generally speaking, about 2/3 of contested family law cases resolve in mediation in the early stages of the case. Of the 1/3 that do not settle, about 1/2 of those will resolve in the latter stages of the case after there has been some discovery, preliminary court hearings, and expert evaluations. Of those that have still not settled after all this, about 2/3 of those will ultimately resolve on mutually satisfactory terms before final trial (with the deal sometimes being worked out literally the morning trial is to begin). As you may imagine, this is why courts encourage mediation so strongly because it has a proven track record of producing positive results. Fair settlements benefit everyone involved in the court process by giving the parties the results they desire without having to incur the heavy emotional and financial cost a trial entails and making it possible for judges to hear more cases in a speedy manner without being bogged down with disputes that, while important, could and should have been worked out between the parties themselves. All this being said, mediation is not for everyone and there are timing issues involved. In some cases it is better to mediate in the later stages of the case than early on (and in other cases the reverse is true). This is affected not only by the facts and law applicable to the case but also the personality dynamics of everyone involved (clients, attorneys, witnesses, the judge, etc.).

In many cases parties are entrenched in their view of what is likely to happen at trial and will not budge until they recognize the outcome of trial is anything but certain. Common ways to de-entrench the parties are to obtain temporary orders, request expert evaluations of the parties’ financial or custody issues, involve professionals who can resolve issues of concern (e.g. if a parent has a substance abuse problem that generally needs to be resolved to expand his or her custody rights), or seek to remove obstacles to settlement which could be meddling third-parties (step-parents, grandparents, unfavourable restraining orders, etc.). In every mediation parties are negotiating in what I call the shadow of what is likely to happen in court if they cannot reach an agreement on their own.

Generally no one is going to settle for less than what they expect to achieve in court unless they are getting something of equal or greater value in return that they would not get at trial or the benefits of settling outweigh the emotional and financial cost of taking the case to trial regardless of what the outcome might be. There are also some cases where each side is genuinely convinced they are going to prevail at trial and there is nothing the other side can offer them to settle for less. Just as it is important for a good attorney to encourage settlement if the outcome is just as good (if not better) than the likely result from going to trial, a good attorney will encourage you to walk away from mediation if the process is wasting everyone’s time and resources without hope of generating a reasonable outcome (at least for the time being). I also note in closing mediation is not the only so-called “alternative dispute resolution” process that parties use in family court to resolve their disputes. There are other tools such as parenting coordinators, special masters, arbitration, etc. But those will be the subject of another article in the future.

When Is Utah Divorce Mediation Mandatory?

In a divorce procedure, there are two parties, the Petitioner who files for divorce by filing a divorce petition and the Respondent who responds or answers the divorce petition. Since 2005, Utah has required all contested issues to be referred to mediation once a Respondent answers the divorce petition. At a minimum, both parties must participate in one mediation session before the case may proceed through the court system, with a few exceptions. See Utah Courts Divorce Mediation.

How is a Utah Divorce Mediator Chosen?

Utah law requires the parties to identify and pay for a mediator to provide a mediation session. These costs are typically divided between both parties. The mediator providing Utah divorce meditation must be qualified under Section 78-31b-5. In the event that the parties cannot afford a mediator, they may apply for financial assistance or request a pro bono mediator.

What if Divorce Mediation is Inappropriate?

In the event that the parties feel that divorce mediation is in inappropriate for their specific case, the Utah State Court, a Court Qualified Mediator, or the ADR Office may excuse mediation for “good cause”. If the Utah divorce mediation process is excused, the divorce case may continue through the Utah court system. Reasons to excuse mediation may include that one of the parties feeling unsafe, that higher level of conflict exists between the parties, one of the parties may not be able to express themselves while in a mediation setting, and other reasons deemed excusable by the Utah State court.

Role of the Mediator: What does a Mediator do?

Mediation leaves the decision power totally and strictly with the parties. The mediator does not decide what is “fair” or “right,” does not assess blame nor render an opinion on the merits or chances of success if the case were litigated. Rather, the mediator acts as a catalyst between opposing interests attempting to bring them together by defining issues and eliminating obstacles to communication, while moderating and guiding the process to avoid confrontation and ill will. The mediator will, however, seek concessions from each side during the mediation process.

Forbearance from Litigation During Mediation and Confidentiality of Proceedings

At the outset of a mediation process, the mediator may well seek agreement from the parties to forbear from litigation during the mediation process and to hold everything that is said in the various sessions confidential and not deemed an admission or used against any party in any other proceeding if mediation fails.

Procedures: Joint Session Followed by Private Caucuses

Mediation generally begins with a joint session to set an agenda, define the issues and ascertain the position and/or concerns of the parties. This allows the parties to attack the resolution process either on an issue-by-issue or group-by-group basis. The joint session is then followed by a separate caucus between the mediator and each individual party or their counsel. This allows each side to explain and enlarge upon their position and mediation goals in confidence. It also gives the mediator an opportunity to ask questions which may well serve to create doubt in an advocate’s mind over the validity of a particular position.

Benefits Of The Mediation Process

To Parties

There are numerous reasons why a party to a dispute might choose mediation over traditional litigation or other forms of alternative dispute resolution. Some of them are affordability, timely resolution, private sessions, confidentiality, participation in the resolution of the dispute, and in many cases preservation of the interrelationship between the parties. The cost of mediation is less than the average cost in time and money for the litigation of a dispute. The mediator’s hourly rate is generally lower than the hourly rate for a lawyer.

Parties can often schedule mediation within weeks of a decision to mediate or a court order to mediate. Mediators offer their services in the evenings, weekends and regular weekdays. There are no spectators to the mediation and whatever is said in the mediation cannot be repeated or reported by the mediator to another party. The Settlement Agreement is the only record of the proceedings. The Agreement to Mediate which is signed by the parties prior to the conference will often remind the parties of the confidentiality of the session and that the mediator is not available as a voluntary witness in a trial of the matter. The ability to fashion user friendly resolutions to a dispute is an attractive component of mediation. The parties are empowered to solve their problem in workable terms to achieve a “win-win” solution. This often promotes healing where one party feels tremendously aggrieved or allows the parties to continue their business, employment or personal relationship. In many cases the parties strengthen their working relationship for greater workplace efficiency.

To Attorneys

The ability to move cases to resolution is an ever present problem for attorneys as they seek to improve the financial status of their practice. This is complicated by court dockets that are backlogged and much time is spent waiting for a judge or jury to be assigned even on a day when a case is scheduled. Continuances are often requested by opposing counsel in routine matters which if resolved would limit the amount of manpower allocated to a particular case. Mediation offers an opportunity to improve case management/resolution and client satisfaction. An employment discrimination complaint can take years to litigate. Using various forms of alternative dispute resolution available in the area of employment law, an attorney can resolve such complaints in months after the investigation is complete. A personal injury case with a simple soft tissue injury can be mediated in a matter of weeks after submission of the demand letter to the insurance company in areas where insurance companies have agreed to mediate certain classes of cases. Swift, efficient movement of workers’ compensation cases, contested divorces with complicated property and custody issues and business contract disputes can improve the financial status of your firm. The corollary benefits are customer/client satisfaction, increased client referrals and more time for complex cases. Mediation offers the opportunity to improve your bottom line by adding a service to your practice. You can become a court appointed mediator for court ordered mediations, advertise your services to members of the bar who are looking for mediators with special expertise or collaborate with a group of lawyers to provide a mediation service for a particular industry or area of law.

Qualifications Of A Mediator

Most jurisdictions, administrative agencies and dispute resolution companies require mediators to have a minimum of 20- 40 hours of general mediation training, a designated amount of mediation experience, either as an observer or a co-mediator with an experienced mediator and a college degree or higher. Applicants must submit proof of completion of training, experience, education, and letters of reference from persons who have used their service, evaluated them as a co-mediator and/or can attest to their character. Most forums prefer to train their mediators or to certify various companies or college programs for mediation training. Mediation training received from a non-certified or approved entity is often held to a high scrutiny as to the level of competency of the trainers and their program. In most states, a law degree is not required to be a mediator. However states which allow non-lawyers to be mediators have more stringent experience and mediation requirements for the applicants. Four to six hours of training in Understanding the Judicial System of a state is generally a requirement for a non-lawyer or an out of state lawyer who seeks mediation certification in a state in which he/she is not licensed. This requirement is crucial when the mediator seeks court appointed mediations. A similar requirement can be found in instances where an agency certification is sought.

Mediator Ethics

State mediator statutes have ethics provisions and generally a requirement to complete a certain number of hours in a training course on ethics. Most training programs allocate a substantial number of hours to ethics considerations. If there are no locally adopted rules, the trainers will discuss standards of the American Arbitration Association (AAA), the Society for Professionals in Dispute Resolution (SPIDR) or the National Association of Security Dealers (NASD).

The Role of the Mediator

Unlike a judge or an arbitrator, the mediator won’t decide the outcome of the case. The mediator’s job is to help the disputants resolve the problem through a process that encourages each side to:
• air disputes
• identify the strengths and weaknesses of their case
• understand that accepting less than expected is the hallmark of a fair settlement, and
• agree on a satisfactory solution.

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