What Is Mediation? How Is Mediation Conducted In Family Law Cases In Utah?
Mediation is a settlement process wherein parties negotiate an agreement (with the assistance of a professional neutral mediator), in an attempt to avoid further litigation.
In Utah family law cases, parties typically will not meet with one another in the same room during mediation. Instead, they are put into separate rooms with a mediator going back and forth, sharing offers and counter offers, and trying to help the parties reach an agreement. Each party has the right to have an attorney present, representing their case and giving legal advice during the mediation.
Mediation can happen in person or virtually. Virtual mediations (or Zoom mediations) can be as effective as in-person mediations. Utah family law mediations generally take between four to eight hours, depending on the number of issues that need to be discussed and decided.
What Qualifications Should I Be Looking For In A Mediator?
I always recommend hiring a mediator who is or has been an experienced family law lawyer, or else a former commissioner or judge. Although there are some very proficient mediators who do not have attorney/commissioner/judge experience, having that sort of experience helps a mediator do their job more effectively in several ways.
For example, Mediators who lack experience as a family law attorney, a commissioner, or a judge will often miss issues, and fail to address them.
Additionally, experienced family law lawyers or former judicial officers will know the usual methods and ways in which each issue is typically handled. If you are a family law attorney or court officer, you will have seen thousands of domestic cases play out, not only in the negotiating room or the court room, but also afterwards. A mediator who lacks this type of experience might help you reach an agreement, but it will often contain unusual, incomplete, or just plain wacky provisions which were not thought through very well. This can ultimately be a recipe for disaster later down the line when the parties actually attempt to live by or enforce the agreement.
In addition, having a mediator with attorney/commissioner/judge experience helps you arrive at an enforceable agreement sooner. When your mediator has experience as a family law attorney, commissioner, or judge, the agreement, they help draft the signed agreement right there in mediation. This will be immediately enforceable when signed. Non-attorney mediators, on the other hand, cannot draft a fully enforceable agreement within the mediation session. They are only allowed to draft a document called a “Memorandum of Understanding”, which must be taken to an attorney to help shore up the language, so that it later can be turned into an enforceable agreement. And if the “memorandum of understanding” is too general, too ambiguous, or incomplete, the stipulation will not be drafted at all.
Non-attorney mediators are less expensive. However, mediation and the negotiations involved therein are so important and have such significant and long-lasting consequences that you want to focus on quality over price. When it comes to mediation, you generally get what you pay for. Mediation will cause “bargain hunters” to wish they’d paid more up front, in order to avoid paying MUCH more later.
How Should I Prepare For Mediation In Utah?
There are several ways in which you can prepare yourself for mediation in Utah.
- Have A Proposed Agreement Ready To Go: If possible, it is a good idea to have a proposed agreement already prepared when entering mediation. Curiously, most attorneys don’t do this. But in my opinion, showing up to a mediation without a proposed agreement is a mistake.
I almost always take the time to prepare a proposed agreement in advance for several reasons. For one thing, having a prepared agreement at the start of mediation helps me think through all the issues and identify all of the problems and proposed solutions beforehand so that I don’t forget any vital issues. It also helps me think through the specific language that I want included beforehand, so that the other side is operating from my language, rather than me having to think through theirs, during the course of mediation.
- Make Sure The Physical Conditions Are Right For Mediation: During the ongoing COVID-19 crisis and beyond, virtual mediation over services like Zoom are becoming more and more common. If your mediation occurs over video conference on platforms like Zoom, you should make it a priority to use a fully functioning computer with a good, reliable internet connection. You should conduct a “tech check” to make sure your camera, microphone, and internet connection are all stable and fully functional before mediation starts.
When the time comes for the actual mediation, you should make sure to log-in from a location that is quiet, private, and far away from distractions. Children should not be present for any part of mediation. I also strongly suggest that both parties block off the whole day on their schedules and avoid interruptions.
- Come With Payment For Your Mediator: In terms of payment, you should be prepared to pay your mediator at least half of their fees at the conclusion of the mediation session. This is standard procedure for mediation in Utah.
- Make Sure Your Mediator Has Access To All Information: Your mediator should have access to all pertinent records and information, including financial documents, petitions and counter petitions, and other any other records that may need to be consulted during the course of the mediation.
- Bring Something For Downtime: Something that may people don’t realize about mediation in Utah is that there is a good deal of downtime while the mediator is with the other party. It is often helpful for participants to have something to do or something that relaxes them with them in the mediation room. This could be a book, a crossword puzzle, knitting, or anything else that is unobtrusive enough, so as not to distract from the process, but which can keep you occupied as you wait your turn. Not only will this increase your stamina during the often long and draining mediation process, but being more relaxed will help you make better decisions.
- Consider Bringing A Support Person: Participants in mediation in Utah are allowed to bring another person into mediation with them as a source of support. In many cases, my clients have benefitted from bringing a calming, level-headed support person with them to mediation. If you bring a support person to mediation, make sure they are the type of person who will primarily offer support and help calm your nerves, rather than fan the flames of conflict and get you riled up. The support person is allowed to offer occasional advice, but should understand that they are not there as main participants, but rather are there to support you as you participate in mediation.