Mediation vs Self-Representation

It has been estimated by the Utah State Courts that around 70% of divorce cases in Utah have at least one party who is not represented by an attorney. There is speculation that many Utah divorces are difficult to afford possibly due to parties marrying and divorcing young.

Judges and commissioners have recently had to deal with slashes in budgets and are taking on more cases with less administrative help.  Having litigants without representation bumbling their way through procedures is even more difficult to deal with as overworked judges want proceedings to be as efficient as possible.

Mediation might be the best option for divorces where parties are unable to afford hiring legal counsel.  In addition to it being a requirement to finalize your divorce in Utah, it also costs much less than litigating in court.

You also actively negotiate the outcome and can make sure you walk away with an agreement you can live with.  This can bring you much better results than having to live with the decree of a judge who is frustrated with you for not showing up with a lawyer or dismisses your arguments because they were not properly presented.

Contact a court-rostered Utah mediator to learn more about your mediation options.

Issues to Cover at Mediation

For divorces and paternity actions (non-married parents) in Utah there are only so many issues that really need to be covered in your final papers:

For both divorces and paternity actions you must resolve these issues:

1.  Physical custody- how many overnights will the child spend in each parent’s household, including provisions regarding holidays, summer or off-track time, and any other time that is important to the parties.

2.  Legal Custody- how will decisions be made regarding issues that are significant in the child’s life and what process will be used to resolve a disagreement.

3.   Child support- who pays whom and how much.

4.  Other child related financial issues such as health insurance premiums, uninsured child medical costs, day care, extra-curricular activity expenses for the child, and  who takes the tax exemption for the child on his or her taxes.

5.  Any other issue that is important to one of the parties such as substance abuse or alcohol use during parent-time, safety of the child, time with step-siblings and extended family, costs for private school education, etc.

In a Divorce, these additional issues should be discussed and settled:

6.  Division of assets.

7.  Division of debts.

8.  Division of personal property and personal items.

9.  Alimony.

Most other issues are primarily emotional and not something the court will spend a lot of time considering anyway.  Focus on resolving these issues and you are likely to settle your case.

What is Divorce Mediation?

Divorce mediation is required by the Utah State Courts. The process is led by a mediator, a neutral third party who acknowledges the parties’ concerns, while helping the parties come to agreement through negotiation.

Some of the key issues that mediators assist the parties in resolving are:

• Custody
• Visitation schedules
• Child support
• Alimony
• Asset division

Parties sometimes choose to have a lawyer present during mediation sessions.

The goal of the mediator is to have a divorce settlement agreement at the end of the mediation session. The mediation fees are generally split between both parties.

Mediators usually come from either a legal background as a practicing attorney, or as a mental health counselor.  It the State of Utah, mediators are required to undergo extensive training and mentoring before being certified as a court-rostered mediator.

Mandatory Mediation in Utah

Since May of 2005, the State of Utah requires parties to participate in at least one mediation session before their divorce cases are allowed to proceed in the Utah court system.

For the mediation session to qualify, the mediator must be actively listed on the ADR Court Roster.  The parties are responsible for mediation fees, and generally the costs are split in half between both parties.  People who feel they can’t afford to pay for mediation may submit a Divorce Mediation Program Income Survey to be considered for possible pro bono mediation or financial assistance.

According to the Utah State Courts, “Mediation is appropriate in family related matters because it encourages collaborative problem solving by the parties.”  Some of the benefits of mediation are:

• Mediation helps parties resolve their case faster.
• It costs less than legal action and trial.
• Helps avoid the stresses of court.
• Helps develop communication so your can end with a better relationship with your ex-spouse.
• Gives you an opportunity to be directly involved with problem solving the issues in conflict.

If you have additional questions please contact a Utah mediator.

Mediation Can Work Even When It Seems Impossible

Does your divorce seem impossible to mediate? If so, you are not alone. Many people feel that there are too many unresolved issues and too much emotional volatility for the parties to come to an agreement.

Fortunately, no matter how hopeless your chances of settling may seem, statistics are in your favor for coming to an agreement. It is estimated that over 95% of divorce cases are settled before going to trial.

Having a neutral third-party mediator present to facilitate the process helps the parties to stay at the negotiation table longer than if the parties were speaking to each other on their own. Also the mediator can focus the conversation on creative problem solving when the parties start slipping back into patterns of rehashing grievances and blame.  A skilled divorce mediator can make a world of difference in getting two parties to resolve their issues.

Should I Bring a Lawyer to Mediation?

While mediation is a critical part of the divorce process, it is not a substitute for qualified legal advice from a family law attorney.

Some situations are fine for mediation without a lawyer.  Some factors to consider are:

• Are you able to communicate with your spouse without constant fighting and aggression?
• Are both parties in agreement on most issues and have just a few items to resolve?
• Are both parties able to remain emotionally stable and calm in the presence of each other?
• Do both parties want to get the divorce over with quickly?

If you can answer “yes” to all of the questions above, you may not require an attorney to be present at your mediation.

There are benefits to having a lawyer present at your mediation:

• An experienced attorney can advise you if a proposed offer would likely be supported by a commissioner or judge if the case were to proceed in court.
• Your lawyer can explain how based on State code, an offer might really be good for you even if your gut feeling tells you it doesn’t seem fair.
• If opposing party has an attorney with them, an attorney on your side can keep them in check and validate whether or not the opinions offered by the opposing counsel is likely to be valid.

Although hiring a lawyer to advise you during mediation will cost more, a lawyer could potentially end up saving you thousands of dollars by keeping offers inline with how the court system would generally rule on the issues.