Litigation is expensive. Litigation is time-consuming. Alternatives to litigation exist, and mediation is a popular alternative in Utah. It allows each party an opportunity to speak freely, openly, and honestly with the guidance of counsel. The goal of mediation is to come to an agreement and avoid further legal disputes, legal costs, and litigation.
Jaime Topham is a court rostered Domestic Mediator for the State of Utah and is has also completed the training for Collaborative Divorce. She provides mediation services for clients who agree to try mediation as an option to address their legal dispute. Contact us at 435-884-3426 to schedule a 15-minute phone consultation and to learn whether mediation might be a viable option for you.
Mediation as Alternative Dispute Resolution (ADR) in Utah
Mediation is a form of ADR where a neutral third party assists the parties to try and reach a mutually agreeable resolution.
In mediation, the parties retain a high degree of control over proceedings. They agree on the mediator—often someone with experience relevant to the subject of the dispute—and ultimately decide the outcome. The mediator doesn't suggest a settlement or adjudicate the matter like in arbitration. Instead, they aid discussions between the parties, encouraging them to find common ground.
Mediation can be ideal for cases where the parties want to maintain their relationship or where negotiations have become too emotional. A mediator can impartially assist the parties toward productive discussions.
Mediation may not be suitable where a party refuses to compromise or is reluctant to take part in the process. Given the informal nature of mediation, it may also not be appropriate where there is a power imbalance between the parties, and the one with more bargaining power seeks to take advantage of the other.
Mediation in Utah
In facilitative mediation, the mediator guides a discussion between the parties to help them understand each other's position and interests. The mediator doesn't express their views but instead encourages the parties to find a resolution. A legal analysis of the case is usually secondary to the interests and wants of the parties. If necessary, the mediator may have the parties evaluate the legal strengths and weaknesses of their position on issues, as if the matter were to continue to trial, as a means of evaluating offers provided by either party.
While facilitative mediation focuses on resolution, transformative mediation aims to repair and rebuild the relationship between the parties so they can find an agreed resolution. The mediator does this by helping the parties recognize and understand each others' interests and needs. The Collaborative Divorce Process most often uses the transformative style of mediation.
Court-mandated mediation. If the parties are ordered by the court to attend mediation, the parties are still in control of the process. The court's order requires the parties to show up to the mediation setting, but does not require the parties to find a resolution. The parties are the decision makers and can choose to find a resolution or choose to continue the process to trial.
Common Areas of Law Using Mediation
Mediation is used in all areas of law, but it is most common in the following areas.
- Adoption
- Juvenile Court matters
- Civil Issues
- Commercial
- Divorce/Custody
- Probate/Guardianships
- Employment
- Environment
- Intellectual property
- Personal injury
- Real estate
Mediator Qualifications in Utah
Because mediation is an important step to resolution and the mediator will play a major role in this effort it is important to identify the qualifications to be a mediator in Utah.
General requirements include the following:
- Training. To be included on the Utah State Court's Mediator Roster, mediators must have successfully completed 40 hours of approved mediation training, complete 10 hours observing court qualified mediators, and pass an ethics exam. For domestic matters, mediators must have additional training specific to domestic matters and complete a domestic training mentorship prior to being added to the Court's Domestic Meditator Roster.
- Experience. Utah requires Court Rostered mediators to complete at least 10 hours of observation for the general roster.
Advantages of Mediation in Utah
Mediation is used because it offers a number of benefits and advantages for both parties.
- More cost-effective. Mediation is generally a cheaper option than litigation as proceedings are informal and often less complex. While there is a mediator fee, the parties typically share this cost.
- Less time-consuming. Mediation may also lead to a faster outcome than a trial. There are generally many skilled mediators available to hear a matter, and mediation can be set up at the parties' convenience, rather than relying on a busy court schedule.
- Flexible outcomes. There is a range of potential outcomes available to parties in mediation. The court often has limited options, whereas mediation allows the parties to come up with more creative solutions.
- Preservation of the relationship between the parties. Successful, voluntary mediation can allow the parties to move forward with their relationship intact. Since the outcome is mutually agreed upon, the parties are more likely to follow it than a court-ordered version.
- Confidentiality. What happens in mediation stays in mediation. Mediation proceedings and outcomes are confidential.
Disadvantages of Mediation in Utah
Mediation has its downsides, too, depending on how it's perceived.
- No guarantees. If the parties cannot reach an agreement, they must still go to court despite investing time and money in the mediation process.
- No legal precedent. This means the outcome cannot be used to guide similar cases in the future.
- Limited legal protections. If there is a power imbalance between the parties, the stronger party could use mediation to their advantage. Unlike a trial, there are limited procedural protections for the weaker party.
Roles of the Mediator versus the Attorney
Many people wonder whether they need an attorney if there is a mediator. In most cases, an attorney is optional but is almost always beneficial. Here's an overview of a mediator's role versus an attorney's role in mediation.
Mediator's Role
- The mediator functions as a neutral facilitator.
- The mediator facilitates communication between parties.
- The mediator helps parties identify common issues and develop possible solutions
- The mediator helps parties work through possible solutions to come to an agreement.
- The mediator does not make decisions or give advice.
- The mediator does not lead either party in any specific direction.
- The mediator can choose to hold sessions together or separate the parties.
- The mediator controls how the mediation proceeds.
Attorney's Role
- The lawyer helps prepare the client for mediation by coming up with key points or issues to address and making sure nothing is left out or overlooked.
- The lawyer guides their client with the intention to work toward a resolution so long as it adequately aligns with the client's interests.
- The lawyer guides the client on risks and gains in any proposals formulated during mediation.
- The lawyer informs the mediator of any special needs the client may need.
- The lawyer ensures the client is not pressured into agreeing to anything contrary to their interests.
- The lawyer will help the client review any agreement originating from the mediation.
- If the parties settle on an agreement, the lawyer ensures the agreement is executed.
Contact Us Today
Mediation is a great way to avoid litigation and resolve legal issues. Jaime Topham has the legal training as well as the mediation skills to help parties craft well thought out solutions for their family through the mediation process. Contact Topham Family Law, PLLC today either by using our online form or calling us at 435-884-3426 to schedule a 15 minute phone consultation to find out if mediation will be a good fit for your case. .
