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Posted by eric_k_johnson on November 18, 2011
Divorce Mediation in Utah: The Truth, the Whole Truth, and Nothing but the Truth
If you conduct a web search of “what is mediation,” virtually all you get are glowing self-congratulatory “explanations” or “descriptions” that are, in truth, just advertisements for a particular mediator’s services. To be fair, much of what the mediators state is accurate, but they spin and slant every word to make divorce mediation appear to be a cure all, which it is not.
Consequently, hapless, vulnerable divorcing people who have little time, money, patience, or confidence in the future are more than happy to lap up the snake oil these self-serving mediators peddle.
Do not misunderstand me: mediation is a good thing, but it’s not a magic panacea for all your divorce woes. To give it to you straight, I have selected a typical pro-mediation explanatory article provide for you my commentary on a paragraph by paragraph basis below, so that you get an honest view of what mediation is and is not and what it realistically can and cannot do.
| Divorce Mediation Myths | Mere Mediation |
| Debunking divorce mediation myths: Facts about the mediation process. | Debunking the Debunker |
| By Katherine E. StonerFrom:http://www.nolo.com/legal-encyclopedia/divorce-mediation-myths-30191.html | |
| Myth: Mediation allows one spouse to dominate another. | |
| Fact: A good mediator pays close attention to the power balance between the spouses and uses specific techniques to address any imbalance. If one spouse persists in dominating behavior, the mediator will call a stop to the mediation rather than allowing it to continue. One caveat: Even the best mediator can be unaware of a power imbalance if it only goes on outside of the mediation sessions and the spouses don’t let the mediator know about it. | Notice what is not being stated here. A mediator can “pay close attention to the power balance between the spouses” and can try to “use specific techniques to address any [power] imbalance,” but it should be apparent that at best all the mediator can do is make efforts, not guarantee results.Mediators say that “if one spouse persists in dominating behavior,” the mediator will “call a stop to the mediation rather than allowing it to continue.” Big whoop. Sure, the dreaded power imbalance is addressed, but the mediation’s over and your divorce case is no closer to getting settled.Anyone who thinks mediation ensures that you won’t be intimidated by an intimidating spouse is dreaming. Most honest mediators would agree with me on this. |
| Myth: Women are at a disadvantage in mediation. | |
| Fact: Women are no more at a disadvantage in mediation than in divorce court. In fact, women can often obtain a better result in mediation than they can in court, because the mediation process allows separating spouses to negotiate an agreement that considers nonlegal factors. Also, except for court-ordered (mandatory) mediation, a woman is free to stop the mediation or refuse to sign an agreement that seems unfair to her. | I concur that women are no more at a disadvantage in mediation than in court. But once again (and you’ll see this a lot in my commentary that follows) this mediator oversells it when she claims that “women can often obtain a better result in mediation than they can in court.”Notice that this mediator always uses the weasel word “can” to qualify every claim. If a woman “can” obtain a better result in mediation than in court, then it logically follows that a woman “can” also obtain a worse result in mediation than in court.Nothing about mediation ensures a better outcome than in court for women (or men, for that matter), but mediators who want you to think they have a miracle cure won’t confront this obvious fact and instead gloss over it with a tempting sales pitch. Don’t be taken in by anyone’s slick sales pitch (mediator or otherwise). Few people in this world are looking out for you, especially the ones who publicly advertise their wares.While it is true in Utah that “a woman is free to stop the mediation or refuse to sign an agreement that seems unfair to her,” so what? All that means is that the mediation ended; the divorce elephant is still in the room. And if mediation doesn’t settle your case, to court you go, ladies, or you just settle on your intimidating husband’s lopsided terms. |
| Myth: Mediation is more of a hassle than hiring a lawyer to handle the divorce. | |
| Fact: Whether divorcing spouses mediate or hire a lawyer to handle the divorce, they have to do a certain amount of gathering information and making decisions. Mediation offers a streamlined approach to the information-gathering and decision-making processes. In contrast, using the courts is cumbersome and expensive. | No argument here. Well, not much of an argument. Mediation offers a far more streamlined approach to the information-gathering and to the decision-making processes. Comparatively speaking, using the courts is far, far more cumbersome and expensive.Caveat: If a divorcing couple is extremely wealthy, extremely debt-ridden, or has a divorce case with unusual or extremely complicated issues, more accurate and more detailed information may be needed, and thus sometimes the more cumbersome and expensive process involved with the court process yields more accurate and more detailed information in such instances. |
| Myth: Mediation is for wimps. | |
| Fact: In mediation, the spouses stand up for themselves and what they want. They don’t have lawyers speaking for them and telling them what to do. As a result, people who mediate often come out of their divorce with enhanced communication skills and self-confidence, as well as agreements they can really live with. | This is no myth. While mediation is not exclusively for wimps, many wimps do in fact resort to mediation because, being wimps, they see mediation as the path of least resistance, if not the most effective approach.Mediation is not a magic cure-all alternative to the divorce process. For mediation to work, both parties must go in to mediation with “enhanced communication skills” and a willingness to compromise.I have not and will not deny that two cooperative people may come to a satisfactory settlement in mediation (I have helped many such people settle in many such cases as an attorney). But the truth is that most clients and /or their spouses are not inherently reasonable or cooperative!
You don’t have to be a “wimp” to go to mediation, but going to mediation certainly does not make you brave, self-confident, or an “enhanced” communicator. |
| Myth: Mediation makes the divorce take longer. | |
| Fact: Mediation almost always takes less time than litigating a divorce. Unless the spouses have worked everything out ahead of time, hiring lawyers to handle the divorce will almost always take as long or longer than mediating, even if the lawyers are able to settle out of court. | If mediation works, it takes less time than court. If it does not work, you have simply wasted your time, and your money too before you head off to court.I like to attend mediation with my clients, even if only to settle the minor issues before proceeding to the big ones. In fact, in most cases I will contact opposing counsel and the mediator in an effort to schedule mediation early on in the matter.But that does not mean you can’twaste time in your mediation! Time and resources are valuable and going to mediation unprepared and/or in bad faith will only prolong your divorce, deplete your resources, and generate animosity.When going to mediation, don’t be a wimp and don’t be lazy. If the opposition attends mediation in bad faith, don’t let them waste your time, money, effort, and goodwill any longer. The moment you realize the opposition will not cooperate, walk out. Not only will this save resources, it will make your spouse and his/her attorney realize will not be worked over. You are in mediation to come to an agreement, not sign the first and only paper they slide across the table.
Finally, contrary to the article’s assertions, involving a competent lawyer is always a safe bet when there is a dispute. Unless you have come to a complete agreement with your spouse without help (which obviously doesn’t apply if you are considering mediation), hiring an attorney to represent you during the mediation process is just as important as hiring an attorney for the divorce itself. For example, you don’t want to sign a stipulation (binding on you and your spouse) only to find out later that the “oral” promises not included in the written agreement can’t be enforced (and yes, that does happen all the time). Mediation does not substitute for legal knowledge, preparation, and effort to make an informed decision. A misunderstanding during mediation can have very expensive repercussions. |
| Myth: There’s no place for lawyers in mediation. | |
| Fact: Lawyers who understand and support mediation can help mediating spouses in several ways: by informing them of their legal rights and options, by coaching them through the negotiations, by coming up with creative settlement ideas, and by preparing the necessary divorce paperwork once an agreement is signed. Most consulting lawyers charge a reasonable hourly fee and don’t require a large retainer (advance deposit). A spouse pays for only as much consulting time as is needed. (To learn more about getting a lawyer’s help in mediation, read Nolo’s articleLawyers and Divorce Mediation.) | The article nearly got it right: it is a myth that “there’s no place for lawyers in mediation,” but then the article’s explanations are subpar. Lawyers (more precisely a good lawyer, not just any lawyer), whether they appreciate mediation or not, are important during the mediation process. Good lawyers are important throughout the entire divorce, not only for their legal knowledge but also to protect you.You want to hire an attorney who knows your situation, who knows the strengths and weaknesses of your case, who knows what you want, and whose interests are aligned with yours. |
| Myth: All divorce lawyers understand and support mediation. | |
| Fact: Divorce mediation is still a relatively new way of approaching divorce. Many adversarial lawyers have little or no experience with the nonadversarial approach used in mediation. Some even disapprove of mediation, arguing that divorcing spouses should not negotiate on their own but only through lawyers. These attitudes are slowly changing, as divorce lawyers become more aware of mediation and its benefits for their clients. Meanwhile, spouses wishing to mediate their divorce need to find consulting lawyers who are “mediation-friendly.” | As an attorney practicing in family law for years, I have ever-growing experience with mediation.Attorneys who have experience with mediation know the truth behind the benefits and detriments of mediation and will discuss those benefits and detriments honestly with their clients.In an effort advertise their services and dissuade potential clients from obtaining representation from an attorney, the article asserts: “Some [attorneys] even disapprove of mediation, arguing that divorcing spouses should not negotiate on their own but only through lawyers.” Good attorneys should not and do not prevent their clients from reaching a settlement regardless of their opinions on mediation.Not all attorneys are blind to the honest, substantial benefits of mediation. Attorneys who can criticize mediation generally have their eyes open to mediation as it really is, warts and all. If an attorney has no experience with mediation, he should not have an opinion either way. But with experience comes understanding, and that can mean that the “wonders” of mediation are not quite so wonderful in every case. |
| Myth: In mediation, the mediator decides what’s fair. | |
| Fact: Unlike a judge or an arbitrator, a mediator has no power to make decisions for the divorcing spouses. The mediator’s job is to help the spouses negotiate an agreement that each of them considers fair enough to accept. | The mediator’s job is to help the parties come to an agreement. But every mediator has a history and the possibility of bias and/or incompetence is ever present. While it is a mediator’s job to help the spouses negotiate an agreement that each of them “considers” fair, that does not mean the agreement will actually be fair. In fact, the settlement agreement reached in mediation may be quite the opposite of “fair.” Mediation does not ensure fairness–you do. So be informed and consult a good lawyer to ensure you know what’s in the realm of fair to you and to your spouse. |
| Myth: Mediation is always the best option for every divorcing couple. | |
| Fact: Mediation works for most divorcing couples. As long as both spouses are able to speak up for what’s important to them and can behave themselves appropriately in mediation, the process can work for them. On the other hand, mediation may not offer enough protection and structure for some couples. For example, a couple with domestic violence or substance abuse issues may need to have lawyers speak for them instead of trying to negotiate directly. In addition, some spouses may prefer to assume the risks and cost of adversarial litigation in order to make a point or assert a legal right rather than compromise in a settlement. | Since “mediation is not for every couple” has been stressed enough, I will not go too far into this. If you are deciding whether to go to mediation, plan for your spouse (and his/her attorney) to be reasonable, but don’t plan on it just because you’re going to mediation.I point out the last sentence, in which the article states: “…some spouses may prefer…to make a point or assert a legal right…” While spite and hurt feelings should be avoided during mediation, asserting legal rights should not be confused with “making a point.” If you, as a father or mother or spouse, have a legal right to something, don’t give it up believing it is the only way your spouse will settle. If that’s the ultimatum you’re given, it’s time to go to court. Mediate the other issues, but defend your rights (if the issue is a squishy one, you may want to save the hassle and come to an agreement, but don’t be misled.) |
| Want More Information? | |
| To explore all avenues for obtaining a divorce without resorting to litigation, getDivorce Without Court: A Guide to Mediation & Collaborative Divorce, by Katherine E. Stoner (Nolo). | Want more information? Talk to your spouse, hire a good attorney, and then consider the likelihood mediation will amount to an agreement. If you have your bases covered, you will go into mediation, informed, forewarned, forearmed, protected and equipped to recognize and reach a reasonable, satisfactory agreement if it presents itself. Best wishes. |
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