What is Divorce Mediation, and How Does It Work in Utah?
Mediation is an alternative to traditional courtroom litigation.[1] Mediation can provide (but does not guarantee) a quicker, and often less expensive resolution for your divorce case.
During mediation, the parties to a divorce meet with a neutral third party–a mediator–and seek to resolve the issues contested in their divorce. Mediation has the advantage of being less formal than the courtroom setting, is a more collaborative environment, and generally proceeds much more quickly and less expensively than litigation. The proceedings that take place in a mediation are confidential, and the agreement that is reached between the parties is binding, if the parties reach a resolution in mediation. Mediation usually takes place in one day, but take several days, if the parties agree to do so.
In many states–including Utah–mediation is required. Divorcing spouses are required to participate in at least one session of mediation to attempt to resolve their disputes in their divorce case. Parties may, however, be excused from this mediation requirement if they are able to show good cause (such as proving that one of the spouses refuses to schedule and meet in mediation).
So how do you go about mediating a divorce? The parties (or commonly the parties’ attorneys) choose a court approved mediator to conduct the process. The parties agree on a date and time, and meet with the mediator and their attorneys.
The mediation itself typically lasts a half day or full day, but may be more or less depending on the issues involved. The mediator’s fees are generally divided between the parties. Additionally, if either party feels that the mediation is not accomplishing their goals or is not being productive, the parties can terminate the mediation and proceed to prepare for and go to trial. Similarly, if the parties cannot reach an agreement, the case can move forward to trial.
The parties to a divorce can go to mediation with or without bringing an attorney with them to advise them in the negotiation and settlement process. Many people believe that mediation without a lawyer is a “real bargain” because they believe they can rely upon the mediator to provide advice and counsel, but this is not true. Mediators are neutrals. Mediators are not serving as lawyers who represent a party. They cannot side with either party, which means that they cannot provide legal advice. So if you go to mediation without a lawyer and sign a settlement agreement in mediation, you do so at your own risk. I wouldn’t recommend going to mediation without an attorney, but if you do, make sure you don’t sign any agreement proposed in mediation until you have at least reviewed that proposed agreement with an attorney.
Divorcing spouses can resolve all, or just some of the divorce case issues in divorce, so even if mediation does not result in settling all issues, it can help reduce the number of issues to be tried in court.
Mediation does not work for every couple going through a divorce, but it can be a valuable resource for parties wanting to reach a quick and lower-cost resolution of their case. If you are considering mediation as a way to settle your divorce, it is wise, before you engage in mediation, to seek out a skilled attorney to discuss your case and possible resolutions.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] Well, that may have been true 20 years ago, but now most court systems have co-opted mediation and made it a mandatory part of the litigation system, which I submit has made mediation less appealing and less effective than when it was a true alternative to litigation that disputants could choose to utilize, instead of being forced to utilize it.