If you are a party to a contested divorce, Utah law requires you to attend a mandatory divorce mediation session. Divorce mediation is a form of alternative dispute resolution (ADR) in which the married couple meets with a specially trained and court-qualified Mediator who can assist them in negotiating the terms of a possible settlement. Mediation is distinct from the court process, where a Commissioner or Judge hears evidence and makes decisions which the parties must adhere to. It is a unique opportunity for the parties to determine, for themselves, the outcome of their own case.
It is important to understand the role of the Mediator. He or she serves as a neutral third-party and does not “take sides,” give advice or make decisions for either party. Rather, their purpose is to facilitate a discussion between the divorcing spouses about the specific issues which are in dispute. This may include such things as child custody, parent-time, child support, health care expenses, the division of marital assets and debts, tax issues, spousal support, and the like. In addition, Mediators may suggest possible solutions for the parties to consider, although whether or not to adopt any of them is entirely up to the parties. The mediation process is confidential, and the Mediator has an ethical obligation not to discuss what goes on during a session. Once the meeting has begun, anyone in the room, including the Mediator, may end the session at any time for any reason.
Our clients often ask how to prepare for their mediation session. The best thing you can do is to spend some time beforehand thinking through the issues and clearly identifying your goals. Every Mediator has their own style, but certain elements are common to all divorce mediations. The meeting will begin with the Mediator offering a brief overview of the process and asking everyone in the room to sign an Agreement to Mediate. By signing this document, you acknowledge that you understand and agree with the procedures explained by the Mediator. From there, you will discuss the issues of your case and attempt to reach an agreement. You are never required to agree to any settlement term unless you wish to do so. Your attorney may attend and provide legal advice.
Finally, be aware that any agreement reached during divorce mediation is not, by itself, legally binding. A properly written document, usually in the form of a Stipulation, must be signed and filed with the Court in order for its terms to be enforceable. It is highly advisable to seek the services of an attorney, who can ensure that all of the required paperwork is done in a timely manner.
This article was written by Attorney Benjamin L. Lawrence.