Utah Code 30-3-39: Mediation Program
1. There is established a mandatory domestic mediation program to help reduce the time and tensions associated with obtaining a divorce.
2. If, after the filing of an answer to a complaint of divorce, there are any remaining contested issues, the parties shall participate in good faith in at least one session of mediation. This requirement does not preclude the entry of pretrial orders before mediation takes place.
3. The parties shall use a mediator qualified to mediate domestic disputes under criteria established by the Judicial Council in accordance with Section 78B-6-205.
4. Unless otherwise ordered by the court or the parties agree upon a different payment arrangement, the cost of mediation shall be divided equally between the parties.
5. The director of dispute resolution programs for the courts, the court, or the mediator may excuse either party from the requirement to mediate for good cause.
6. Mediation shall be conducted in accordance with the Utah Rules of Court-Annexed Alternative Dispute Resolution.
Divorce mediation and emerging collaborative negotiation processes can help couples separate with less stress, expense, and conflict. A divorce can take years and cost a small fortune to resolve. The task of negotiating child and spousal support, dividing property and other possessions, and establishing child-custody arrangements can be overwhelming, especially when the principals are barely speaking to each other. In the worst-case scenario, separating spouses hire cutthroat lawyers to make rigid (and sometimes outrageous) demands, the two sides dig in, a judge takes over, and animosity reaches a fever pitch. Divorce mediation would seem to offer a more peaceful alternative to traditional adversarial divorce negotiations. And, indeed, by drawing on proven mediation strategies, divorce mediation has been found to achieve higher settlement rates than litigation.
Divorce Mediation and Collaborative Law
More and more in recent years, divorcing couples have been turning to a hybrid process known as collaborative law, which combines a lawyer’s advocacy and legal know-how with the problem-solving orientation of divorce mediation. The process begins when each disputant hires a collaborative lawyer who will negotiate, not litigate. The parties sign a disqualification agreement stating that they will hire a different lawyer if they decide to instead litigate their dispute an agreement designed to commit disputants to the negotiation process, as well as reducing lawyers’ financial incentives to pursue a lengthy litigation process. In addition, disputants agree in advance to disclose all information relevant to the case, to treat each other with respect, to jointly hire experts (such as psychologists in child-custody cases), and to address each other’s needs. In turn, their lawyers promise to serve as negotiators, not litigators, and to try to keep the process honest, respectful, and productive. Working together, the clients and their lawyers engage in a series of meetings aimed at finding creative solutions that meet both parties’ interests. By combining divorce mediation with negotiation, collaborative law increases the facilitative nature of divorce negotiations in a traditionally competitive realm. It also eliminates the conflict of interest faced by lawyers who could gain more financially from a long litigation process than from a quick settlement. Whether individuals choose divorce mediation, facilitative negotiation, or collaborative law, they are likely to reduce the acrimony that’s often linked to divorce and improve their odds of reaching a mutually beneficial resolution. Overall, those preparing to divorce would be wise to seek out professionals mediators or lawyers who believe that mediation strategies and techniques aimed at encouraging an open dialogue are more likely to promote a satisfactory divorce than a straightforward competitive approach would.
Anyone going through a divorce should consider mediation, which can work for almost all couples and has a long list of benefits.
• Mediation is much less expensive than a court trial or a series of hearings.
• Most mediations end in a settlement of all of the issues in your divorce.
• Mediation is confidential, with no public record of what goes on in your sessions.
• Mediation allows you to arrive at a resolution based on your own ideas of what is fair in your situation, rather than having a solution imposed upon you based on rigid and impersonal legal principles.
• You can still have a lawyer give you legal advice if you wish.
• You and your spouse not the court can control the process.
• The mediation process can improve communication between you and your spouse, helping you avoid future conflicts.
While mediation is absolutely worth trying for most couples, not every couple belongs in mediation. For example, if there is domestic violence in your relationship, you should consider carefully before you agree to participate but don’t it out of hand. Some people who have experienced abuse in their marriages find it empowering to meet on the level playing field of a mediation session; others find there’s too great a chance of replicating the dynamics of the marriage and choose to have a lawyer do their negotiating for them. Also, because the mediator can’t order either of you to do anything, a person who wants to delay the proceedings or avoid paying support can abuse the process by agreeing to mediation and then stalling the process. If you need decisions about support or other issues made early in your divorce, you may need to go to court. This doesn’t mean you won’t be able to use mediation at a later point to resolve the rest of the issues in your divorce, though.
Mediation Process
Although each mediator has his or her own approach, most mediation tends to move along the same lines. You’ll usually start with a phone call in which you’ll speak with the mediator or an assistant and provide background information about your marriage, your family, and what the issues are. Some mediators want a great deal of basic information before the mediation begins, while others prefer to gather all of the information in the first meeting when everyone is present. You’ll then attend the first meeting usually held in a conference room or comfortable office where the mediator will explain what you can expect from the process. For example, the mediator may tell you that everyone will be in the same room for the entire mediation or that you’ll meet in separate sessions so that the mediator can get your views or positions in private. The mediator may also take care of some housekeeping business for example, ask you to sign an agreement that says that you’ll keep what’s said in the mediation confidential and that you understand that the mediator can’t disclose any of what goes on there if there’s a court proceeding later on. At the same time, the mediator will try to make you feel comfortable by establishing a rapport with both you and your spouse.
Lawyers in Divorce Mediation
If you are represented by an attorney, the question will arise whether your attorney should attend the divorce mediation with you. This is something you’ll work out with the mediator, your attorney, your spouse, and your spouse’s attorney. Very often, family law mediation sessions involve just the divorcing spouses and the mediator. This keeps costs down and ensures that you and your spouse do the talking and make the decisions (lawyers have a tendency to take over when they are present). Unless your lawyer thinks it’s important that you be represented, try the first session without your attorney. (If your spouse is insisting on having an attorney present, you’ll want to do the same.) If you’re not represented, but you’ve asked a lawyer to be your consulting attorney just for purposes of mediation, then you’ll likely attend the first mediation session on your own. Either way, if you go by yourself and then you find that you can’t state your position clearly or stand up for yourself alone, then consider bringing your lawyer to later sessions.
After the mediator has gone over the basics, you’ll get a chance to make a short statement about your situation, as will your spouse. After you’ve each had a chance to speak, the mediator is likely to ask some questions to clarify or get more information. The mediator may also reflect back what you’ve said, to be sure that both the mediator and your spouse have understood all of your points. The same will go for your spouse. The next step will be to assess where you and your spouse agree and where you need some work to get to agreement. Once you have a sense of what needs to be accomplished, you, your spouse, and the mediator will plan how you’re going to accomplish it. It’s very likely that you will need to gather more information, especially if you’re dealing with property issues as well as child custody questions. (For example, if you don’t know the value of your house, you can’t have an intelligent discussion about a buyout.) The mediator will help you figure out what information you need and ask each of you to commit to bringing certain things for the next session.
Negotiating an Agreement
When negotiations begin, the mediator may suggest that you deal with simpler issues first. Answering the easier questions builds trust and encourages compromise when it comes to the more difficult issues. Negotiating agreements isn’t always linear. You may start at what feels like the end, and you may find yourself needing to gather more information at various points. The mediator will help you to stay on track and brainstorm options, will encourage you and your spouse to express your opinions, positions, and what’s important to you, and will help you listen to each other in ways that will make a resolution more likely. (You may be able to use some of these communication tools in your ongoing parenting relationship.)
The two most important things you can do to make your mediation successful are:
• to be open to compromise, and
• to really listen and try to understand your spouse’s point of view.
Understanding your spouse’s position doesn’t mean you have to agree with it. But it’s possible that once you do understand what your spouse’s real concerns are, you will have new ideas about how to resolve things. Your efforts at understanding will encourage your spouse to do the same. Being open to compromise means that you aren’t attached to one particular solution you can’t just put your idea on the table and expect your spouse to accept it. A compromise that works is one that takes both of your interests into account. Consider the possibility that your spouse might have valid ideas as well, and take the time to think them through instead of rejecting them out of hand.
Completing the Agreement
Once your negotiations are finished and you have found a solution, either the mediator or one of your attorneys will write an agreement and, in many cases, a parenting schedule or parenting plan. These documents will be incorporated with the rest of your divorce paperwork and become part of your divorce judgment, which means that a court could enforce them if one of you doesn’t do what the agreements say you’ll do.
Your attorney will have referrals to local mediators. If you’re representing yourself, you’ll have to locate a divorce mediator on your own. If you can, try to find recommendations from someone whose judgment you trust. You can ask lawyers, financial advisers, therapists, or spiritual advisers for referrals, as well as friends who’ve been through a divorce.
There are several mediation styles, so it’s important that you find a professional who uses the one or the combination – you’re most comfortable with. Some mediators let you hash it out on your own without giving much input, while others prefer to guide you through each issue and make plenty of suggestions.
Some mediators will meet with each spouse privately a few times before bringing everyone together, some prefer to keep you both in the same room all the time, and some keep spouses separate the entire time. If you’re not comfortable being in the same room with your spouse, you’ll need a mediator who understands that and is willing to keep you separate.
Can My Attorney Come To Our Meetings?
Many people who use mediators to negotiate a settlement also work with their own attorneys. Your mediator should be supportive of your relationship with your lawyer, and should also welcome your lawyer to come with you to the settlement conference.
What Happens If My Spouse Is Disrespectful?
You need to know how your mediator will handle the situation if your spouse becomes disrespectful either of you and the mediator or of the mediation process in general. Most mediators require couples to sign written rules before beginning a conference that say they agree to the importance of mutual respect and promise to refrain from intimidating or threatening behaviors.
What Happens If My Spouse Is Dishonest?
Many mediators include honesty as a clause in the initial agreement you’ll all sign before your settlement conference. If your spouse is dishonest about something, how will your mediator handle it? The answer to this question can be exceptionally important, especially if you already know your spouse has a tendency to be dishonest.
How Long Will It Take To Complete Mediation?
Everyone’s situation is different, but much mediation can be completed fairly quickly. In high-conflict divorces, mediation can take longer but really, the timeframe should depend on how committed you and your spouse are to reaching resolutions your whole family can live with.
How Much Will Mediation Cost?
Before you hire a mediator, find out how he or she bills and what you’re anticipated total cost will be. Every situation is different, and the longer your mediation takes, the more it’s likely to cost but in the vast majority of cases, mediation is far more cost-effective than litigation.
Terms Used In Utah Code 30-3-39
• Answer: The formal written statement by a defendant responding to a civil complaint and setting forth the grounds for defense.
• Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
Divorce Attorney
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