By Quinton Lister, Legal Assistant
Part of what has drawn me to my current position as a legal assistant to a divorce attorney is that I wanted to learn more about Alternative Dispute Resolution (ADR). In very basic terms, ADR refers to the other methods of solving disputes between parties outside of litigation in court.
But ADR is clearly not an “alternative” when you have no choice. ADR is often peddled as a cheaper, faster, less stressful cure-all, but that’s deceptive. I’ll discuss this more later in this post.
One form of ADR is mediation, which in today’s world probably everyone has at least heard of, and most people probably have some idea of how mediation works. In mediation the disputing parties privately discuss their issues and try to reach an agreement with a neutral third party acting as a moderator but not a decision maker.
Each divorce case in Utah is required to go to mediation before the matter can go to trial. I figured that I would get a chance to experience what mediation is like by working at a divorce and family law firm. I was right. The mediations I have attended were an educational experience. Each party was fairly civil and the mediator’s job was mostly keeping the discussion on track to cover each topic in dispute. The parties’ respective lawyers were also instrumental in getting the terms of a final settlement nailed down.
Family law in Utah has a strong connection to ADR, particularly mediation. Some might even say the connection to mediation is too strong.
Because mediation is mandatory in all divorce cases before you can go to trial (if you go to trial), the power and value of mediation has been somewhat diluted. Mediation works best when disputing people agree that trying to work out their differences is preferable to fighting out those differences in court. Requiring people who don’t want to negotiate with each other to negotiate will feel forced because it is forced. People come away from mediation with a bad taste in their mouths when they are made to negotiate with a party who hostile or deceptive, or both. Mandatory mediation can feel like just another hoop to jump through on the way to the courthouse for trial. I think it makes sense that just because mediation is possible that does not it should be mandatory.
But one of the reasons that mediation is so appealing to people going through a divorce or other family law dispute is because going to court is so appalling. Mediation, however, doesn’t work with people who aren’t able or aren’t willing to compromise. And there’s nothing that requires you to compromise, especially if you don’t feel it’s fair for you to compromise, when you know or at least strongly believe that the law is on your side. is there a way to fight for what’s right without getting caught up in all the expense and bureaucratic red tape of the court system? Yes, there is. This is where arbitration comes in.
Arbitration is a private forum for arguing and deciding disputes, where the two parties present their case to a neutral third party, typically a retired judge or lawyer, who then decides the case for them and issues an order that is as binding legally binding upon the parties as a court order from a judge. So if you and the other party don’t trust each other to reach a resolution in mediation, and you both have the good sense to know that going to trial in court is going in soon too far too much time, money, and effort, yet you still need your dispute resolved, arbitration maybe just the thing you both need.
I still believe ADR is a topic worthy of further investigation and development. I want to continue to learn more about this topic, better understand the advantages and disadvantages of ADR, and make ADR work.
Utah Family Law, LC | divorceutah.com | 801-466-9277