Mediation empowers individuals to take their legal disputes into the their own hands. Mediation results in a successful resolution a large majority of the time, helping individuals avoid thousands of dollars in attorney fees, the stress of going to trial, the risk of leaving your life in the hands of a judge. In family law cases, mediation can also help reduce the scarring effect a long, drawn-out custody battle can have on kids.
To put things in perspective, consider the fact that some divorce cases can litigate for years. Custody battles are often shorter because the parties are not dividing property, retirement, and arguing over alimony, but even custody battles can easily litigate for more than a year. On the other hand, a successful mediation can settle your case in a single day. However, that’s harder than it sounds. Family law cases are often fraught with contention, distrust, hurt feelings, anger, and other complexities. Getting two parties in such a situation to come an agreement requires a skilled mediator and parties that are prepared to work towards a resolution. In short, mediation is a way that parties can take more control over the outcome of their case and their future.
How does Mediation work?
We try to limit the emotional stress of mediation, so most of the time parties will be placed in different rooms. The mediator will go back and forth between the two rooms and try to find common ground between the parties on all the issues that are in dispute. For example, if the parties are disputing over custody and parent-time, the mediator will talk with Mom and determine what kind of custody Mom desires, why she feels the way she does, and what her major concerns are. The mediator will then go talk to Dad about the same things. A good mediator will have the ability to find some kind of common ground between the parties even when it initially looks like there is none. Creative problem solving, building in certain protections that address the parties concerns, and being able to tell the parties what a judge will most likely do if they take their case to court are important skills your mediator should possess.
If you come to an agreement in mediation, you should have the details of that agreement put down on paper and you should sign it before you leave. If one of the parties has an attorney, the attorney will often draft the agreement. If not, your mediator should be capable of drafting the agreement you’ve come to. That agreement will ultimately be filed with the court and turned into a final order that is signed by a judge. Sometimes parties don’t come an agreement at mediation, but they make significant progress which ultimately leads to settlement down the road. However, not settling your case at mediation does mean you will continue litigating your case in court.
How can I best prepare?
First, parties must understand that they will have to be flexible—both will have to give up some of the things they want. If either party comes to the mediation expecting to make demands, and expects the other party to cave to those demands, the mediation will likely be unsuccessful. In fact, when we attend mediation with our clients, if the other side comes to the table with unreasonable demands and appears to be rigid and inflexible then we terminate the mediation. There’s no sense in spending money to try and come to an agreement when it’s clear the other side just wants to dictate all the rules.
Second, consider what your bottom line is. Your bottom line is your walk away point. Prior to going to mediation, make a list of all of the issues you would like to see resolved. Some of these issues will be more important to you than others. Complete this sentence: “If I settled my case at mediation and walked away with ____, ____, and _____, I’d feel that mediation was successful.” Another way to say this is: “If I can’t get ______, _______, and _______, I’m not willing to settle.” Knowing this is important because mediation can be stressful and emotional. It’s difficult to make life-altering decisions when you’re stressed and full of emotions, so considering the possibilities prior to mediation is important.
Lastly, bring documents/evidence that may help you resolve disputes. For example, parties might disagree on how much money the other makes, how much equity is in the marital home, or the amount of credit card debt they have. Having documentation that supports your position can speed the process along.
How long does it last?
A typical mediation will start at about 8:30 or 9:00am and go until the parties settle or otherwise terminate the mediation because they can’t reach an agreement. However, when parties are particularly motivated to settle and have several complicated issues, they may engage in a non-traditional method of mediation. In a non-traditional mediation, your mediator may gather facts from both parties over the course of several days or weeks (i.e. salary information, retirement account statements, debt reports, etc.) and work with the parties to create an outline that lists the issues that need to be mediated and what the parties desired outcomes are. Eventually, the parties will come together and engage in a typical mediation. This second method is more expensive because it takes more time, but in complicated cases sometimes it’s very beneficial.
How much does it cost?
Mediators typically run from $150 – $250 per hour. This cost is usually split equally between the two parties. If you have an attorney, you will also be paying your attorney’s hourly rate (or whatever fee arrangement you’ve worked out with them) during the mediation. Most all mediators expect payment in full at the conclusion of the mediation.
Do I need an attorney?
You do not need an attorney to attend mediation. Mediators frequently mediate cases with parties that are unrepresented. A good mediator should be able to give you their perspective on what they believe the court would do if you took your case all the way through trial, but they can’t give you advice. Mediators must remain neutral during the mediation process. If you do bring an attorney to mediation with you, they can advise you on what they believe your chances of success are in court, whether the deal currently being offered is a good one, and what strategies you might employ if you don’t settle your case.
Is mediation required?
In a Utah divorce or custody case, mediation is required. All parties must attend mediation at least once before having a trial unless this requirement is waived by the court for unusual and compelling circumstances. The court also expects that the parties give a good-faith effort towards the mediation process.
Call our office to learn more about our mediation services or to schedule your own mediation with one of our attorneys.