Mediation is a facilitated negotiation process where a neutral third party mediator works with divorcing spouses to amicably settle contested issues such as property division, child custody and alimony.
The vast majority of all divorce and custody cases resolve through mediation and never end up going to trial. The reasons for this are simple: a mediated settlement agreement allows parties to maintain control over the final orders of the Court and resolving a case through mediation is considerably less costly than taking the case to trial. Because the final terms of your divorce or parentage decree are likely to be laid down at mediation, it is vitally important to have competent legal counsel represent you at mediation and ensure that you understand everything you might be agreeing to. Courts rarely set aside stipulations signed at mediation, so you should never sign on the dotted line without having the agreement reviewed by an experienced family law attorney.
What is Mediation?
Mediation is a process through which a neutral third party (the mediator) is hired to help parties negotiate and hopefully resolve their disputes without the need to go to trial. The mediator’s fee is generally split 50/50 between the parties. Although motions for temporary orders and other temporary relief can be heard by the Court before going to mediation, generally no divorce or parentage case can go to trail before the parties attempt mediation at least once [see Utah Code § 30-3-39]. With regard to family law cases, particularly those cases involving custody and parent-time, the Utah legal system is geared toward incentivizing parties to reach a stipulated resolution if at all possible, rather than having the parties take matters to trial. For this reason, the Court may require the parties to mediate multiple times before certifying the matter for trial.
As noted above, mediation is mandatory in all family law cases including divorce and custody cases. Second, if a case can be resolved at mediation, it will generally save the parties significant amounts of money and stress. Finally, mediation allows the parties to maintain control over what the final orders will be, and thereby what their respective rights and obligations will be under those orders. Perhaps because of this last reason, decrees based on mediated settlement agreements generally enjoy a much higher rate of compliance than those that go to trial. In other words, you are much less likely to encounter future issues and disagreements if you resolve your case through mediation rather than by taking the case to trial. A mediated settlement agreement can contain finer detail and more specific provisions than you are likely to get through trial and as such are generally preferable, if at all possible.
That being said, some cases and issues simply need to be taken to trial. For this reason, it is important to have competent legal advice during mediation from an attorney who represents your interests. The attorneys at Intermountain Legal have helped hundreds of clients resolve their family law cases, both through mediation and trial, and they are happy to help advise you regarding your case and what likely outcomes are probably if a mediated agreement is not reached.
What to Expect at Mediation?
Mediations generally last anywhere from three (3) to eight (8) hours, depending on the issues that need to be resolved. If the parties are on relatively good terms, then much of the mediation might be spent with the parties, their attorneys, and the mediator in the same room. It is common for the parties and their attorneys to also spend part of the mediation in separate rooms (often referred to in the profession as a “caucus”). If the parties are especially at odds with one another or if there has been domestic violence or abuse, then the parties will generally spend the entire mediation in separate rooms with their respective attorneys, and the mediator will shuttle back and forth between the rooms.
Mediation is a confidential process, and what is discussed at mediation is generally not admissible in Court. In that sense, the parties can be more open and honest about what they might actually be will to settle for than in pleading before the Court or in private communications. This confidentially and the resulting openness and honesty generally aids parties in reaching resolution.
If the parties can agree on all or some of the issues involved in their case, then that agreement will generally be reduced to a written stipulation that is signed at the conclusion of the mediation. Because these terms are likely to govern you and the other parties’ respective rights and duties moving forward, it is vitally important that you have competent legal counsel with you at the mediation to review and advise you regarding those terms.
The inclusion or omission of some provisions may create consequences that aren’t always obvious to a person who doesn’t work on family law cases day in and day out. For example, it might seem agreeable for Wife to be awarded the marital home with an estimated equity of roughly $50,000 in exchange for the Husband being awarded his retirement account worth roughly $50,000 (assuming both the home and retirement account are marital assets). Of course, Husband doesn’t want to continue paying the mortgage on the home, so the parties stipulate that “Wife is awarded the marital home free and clear of any interest by Husband, and that Wife will be responsible for all debts on the marital home and hold Husband harmless and indemnify Husband from any such debt.” The parties sign on the doted line and are divorced a month later with the decree incorporating the language from the stipulation. Husband then tries to get a loan to purchase a new house, but is unable to do so because his name is still on the mortgage for the home awarded to Wife. Husband complains to Wife that she needs to refinance the former marital home to remove his name from the mortgage. Unfortunately, if such a specific provision was not included in the decree, then Husband is likely unable to force Wife to refinance unless she fails to timely make her mortgage payments.
Contact an experienced Utah divorce & custody attorney
The attorneys at Intermountain Legal have helped hundreds of clients resolve their divorce and custody cases. They have the experience necessary to negotiate favorable resolutions and prevent clients from making mistakes like in the above example. Getting your divorced handled correctly the first time can save you from unforeseen mistakes that could cost tens of thousands of dollars to try to correct down the road. There is simply no substitute for having experienced counsel at your side during a mediation.
A Utah divorce lawyer can assist you in selecting a mediator who is best suited to meet your needs. A lawyer can attend mediation with you to ensure that all of your rights, desires and concerns are sufficiently represented.
Intermountain Legal is located in Salt Lake City, UT and serves clients throughout all of Northern and Central Utah including Salt Lake City, Midvale, Sandy, West Jordan, North Salt Lake, Bountiful, South Jordan, Clearfield, Woods Cross, Draper, Farmington, Centerville, Layton, Ogden, Lehi, Provo, Orem, Park City and Davis, Salt Lake, Weber, Utah, Tooele and Summit counties.