What You Need to Know About Mediation in Utah
If you are involved in a contested family law case in Utah the court will likely require you to participate in mediation before going to final trial. You may even be required to attend mediation before you are allowed to file a lawsuit with the court. (This is commonplace when you are seeking to modify a preexisting order).
What is mediation and why do courts require it? Mediation is a collaborative problem solving process whereby each side sits down with a neutral, independent third-party (the mediator) whose job is to facilitate a productive dialogue with the other side in hopes of reaching a mutually satisfactory solution to your case. The mediator accomplishes this by getting each side to discuss not just what they want but why they want it, what they are willing to give the other side in order to gain what is most important to themselves, and serve as a proverbial “reality check” to both sides if they have unreasonable expectations about what they are likely to achieve if they do not settle in mediation and take their case to trial. Mediation also has the benefit of providing you with independent feedback on what aspects of your case seem strong and which are weak which is valuable information you can use to improve your case before it actually goes in front of a judge at some point. Generally speaking, mediation allows you to resolve your case quickly, at a fraction of the cost of taking it to trial before a judge, is less stressful than the adversarial court process, and encourages you to have a positive relationship with the other side (rather than coming out as mortal enemies for the rest of your lives).
The mediation process is not like trial (although there are similarities). First and foremost, almost everything that gets discussed in mediation is confidential and cannot be repeated in court which is intended to encourage the parties to be open and candid about the facts of the case and what they are willing to offer each other to resolve it. (There are limited exceptions to this rule such as if either side threats the other with violence, discloses a previously unreported claim of child or elder abuse, or is engaged in computer crimes). Second, because there is not a judge deciding your case in mediation the focus is necessarily on persuading the other side to agree to terms that are favorable to you rather than a third-party. It is helpful but not always necessary to bring exhibits proving the facts of your case. But if your case involves any financial issues then it is imperative for each side to provide financial disclosures concerning whatever is in dispute (income, expenses, assets, debts, etc.). Third, because mediation is conducted in a collaborative rather than adversarial setting it is generally unproductive to focus on putting the other side down rather than building yourself up. In this regard family law cases are different than other lawsuits because regardless of the merits of your case you are likely going to have to keep dealing with the other side for years to come (especially if you have a child with them). While no one expects parties to leave mediation as friends, it is not helpful to anyone involved in the process to leave as enemies. As the saying goes, you catch more flies with honey than you do with vinegar.
Your attorney’s role in mediation is that of advocate, advisor, and draftsman. First, even though mediation is a collaborative process often necessitating compromise on both side’s part it is our job to get you the best outcome we can given the facts, law, and personality dynamics of the parties. We accomplish this by advocating the justice and fairness of your position to the mediator (and by extension the other side) and highlighting the strengths of your case while noting those issues you are willing to compromise on to reach a resolution. We fulfill our advisory role by sharing our opinion of the reasonableness of each side’s position in light of the range of possible outcomes if the case goes to trial instead of settling. After all, you probably do not want to settle for less than what you’d get in court and likewise do not want to anger your judge by asking for something unreasonable or unlawful. But it is not always clear what is “reasonable” and “lawful” under the circumstances. One of the benefits of having an attorney at your side is having someone to constantly advise you on what the law is and how your judge is likely to rule if you cannot settle things. Our advisory role also entails exploring creative solutions to problems in ways you may not get if the case went before the judge. Lastly, we serve as a draftsman by ensuring any written agreement you reach in mediation completely and accurately reflects what you agreed to, will be legally enforceable, and is free of ambiguities that could cause problems in the future. Because we handle these kind of cases all the time we are able to draw upon a wealth of practical experience and knowledge to anticipate and head off problems you do not even know could exist until it is too late. (In fact, our office gets a lot of business from clients who went to mediation without attorneys and signed an agreement that, while seemingly fair at the time, was filled with ambiguities and unfavorable terms that caused even more fighting later on).
Generally speaking, about 2/3 of contested family law cases resolve in mediation in the early stages of the case. Of the 1/3 that do not settle, about 1/2 of those will resolve in the latter stages of the case after there has been some discovery, preliminary court hearings, and expert evaluations. Of those that have still not settled after all this, about 2/3 of those will ultimately resolve on mutually satisfactory terms before final trial (with the deal sometimes being worked out literally the morning trial is to begin). As you may imagine, this is why courts encourage mediation so strongly because it has a proven track record of producing positive results. Fair settlements benefit everyone involved in the court process by giving the parties the results they desire without having to incur the heavy emotional and financial cost a trial entails and making it possible for judges to hear more cases in a speedy manner without being bogged down with disputes that, while important, could and should have been worked out between the parties themselves.
All this being said, mediation is not for everyone and there are timing issues involved. In some cases it is better to mediate in the later stages of the case than early on (and in other cases the reverse is true). This is affected not only by the facts and law applicable to the case but also the personality dynamics of everyone involved (clients, attorneys, witnesses, the judge, etc.). In many cases parties are entrenched in their view of what is likely to happen at trial and will not budge until they recognize the outcome of trial is anything but certain. Common ways to de-entrench the parties are to obtain temporary orders, request expert evaluations of the parties’ financial or custody issues, involve professionals who can resolve issues of concern (e.g. if a parent has a substance abuse problem that generally needs to be resolved to expand his or her custody rights), or seek to remove obstacles to settlement which could be meddling third-parties (step-parents, grandparents, unfavorable restraining orders, etc.).
In every mediation parties are negotiating in what I call the shadow of what is likely to happen in court if they cannot reach an agreement on their own. Generally no one is going to settle for less than what they expect to achieve in court unless they are getting something of equal or greater value in return that they would not get at trial or the benefits of settling outweigh the emotional and financial cost of taking the case to trial regardless of what the outcome might be. There are also some cases where each side is genuinely convinced they are going to prevail at trial and there is nothing the other side can offer them to settle for less. Just as it is important for a good attorney to encourage settlement if the outcome is just as good (if not better) than the likely result from going to trial, a good attorney will encourage you to walk away from mediation if the process is wasting everyone’s time and resources without hope of generating a reasonable outcome (at least for the time being).
I also note in closing mediation is not the only so-called “alternative dispute resolution” process that parties use in family court to resolve their disputes. There are other tools such as parenting coordinators, special masters, arbitration, etc. But those will be the subject of another article in the future.
Mediation is an important process in every family law case. Give the experienced attorneys at Wiser Family Law today to discuss your Utah mediation case at 855-254-2600.