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What’s wrong with divorce mediation in Utah?

Much.

And much that you can prevent, once you know what to avoid, what to do, and why.

Profiteering mediators. It’s hard to find anyone selling goods or services these days who isn’t trying to take advantage of the client or customer. Mediators (not all mediators, but many—more than I’d care to admit) are no exception.

Overworked, understaffed judges that don’t want to do their jobs, and so they pressure divorce litigants into settling. I’ve personally witnessed judges and commissioners telling divorce litigants that they should settle because “I [the judge] will probably do a worse job with your case than you can.”

A fundamental misunderstanding of how and why successful mediation succeeds. Courts and lawyers have lost sight of what makes for good mediation, i.e., conflict resolution that is faster, less expensive, less acrimonious, more suited to the particular circumstances of the family, and more likely to result in less future litigation.

“Shuttle mediation”. If you are preparing for your divorce mediation, learn about shuttle mediation and avoid it.

  • With rare exception (such as when a party is truly terrified of being in the same room with another, or if there is a protective order in place that bars the parties from being in each other’s physical presence), shuttle mediation is an inexcusable waste of time, money, and duplicative effort.
  • Shuttle mediation at least doubles the time a mediation would otherwise take were the parties speaking to each other across the same table or in the same Zoom meeting.
  • Because the only participant in shuttle mediation who speaks to the disputing parties is the mediator (the parties don’t speak to each other directly in shuttle mediation), the mediator can manipulate the negotiation process by telling one party one thing and the other party something completely different (and many mediators cannot resist that temptation).
  • Many mediators like shuttle mediation because by doubling or even tripling the amount of time it causes mediation to take, mediators thus double or triple their fees over what they’d otherwise earn were the parties all in the same room or in the same Zoom conference.
  • The way mediation is scheduled and held is also incredibly inefficient and wasteful. Parties should go to mediation after exchanging with each other written comprehensive settlement proposals. So much time is wasted in mediation doing anything but actual negotiation.

While you are required to engage in mediation to try to settle your divorce case, you are not required to engage in shuttle mediation. If your spouse will see reason and agree to avoid shuttle mediation, then ensure that your mediator is not a shuttle mediator.

Mediation isn’t necessary if the parties and their respective attorneys are willing to negotiate without a mediator. If the parties can discuss the case and negotiate without a mediator, they are free to do so. Few attorneys, however, are willing to do this. Why I do not know. But if you are a client and you believe your spouse (and his/her attorney) is willing to meet in settlement negotiations without a mediator, try it! If such negotiations fail, you can always go to mediation next.

Parties (usually because of their attorneys) wait too long to discuss and negotiate settlement. Attorneys make less money when cases settle sooner than later. Don’t go into mediation unprepared, of course, but don’t put it off any longer than necessary.

Too much time in mediation sessions is not spent in actual negotiation. Consequently, mediation ends up being incredibly inefficient and wasteful. Often the first 2/3 of the time spent in mediation is spent “getting up to speed,” with the mediator giving an “introductory speech” about how mediation works and with both the mediator and often unprepared attorneys trying to get an understanding of the case and what the issues are. All of that can and should be dealt with before the mediation settlement conference itself.

  • The mediator should send the parties a link to his/her written and recorded “introduction to mediation” presentation to read/listen to/watch before everyone meets in the mediation settlement conference.
  • The parties should meet in mediation only after:

o   expeditiously conducting necessary discovery, so that the material and relevant facts are known to the parties; and

o   then exchanging with each other (and providing the mediator with copies of) their written comprehensive settlement proposals, so that everyone knows in advance 1) what the issues are and 2) what the initial respective positions of the parties on the issues are.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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