In Nevada, what happens in Vegas stays in Vegas. In Utah, what happens in mediation stays in mediation.
What this really means is mediation in Utah is confidential. What you say in mediation, with a few exceptions I’ll talk about in a minute, cannot be discussed outside mediation. This also means you cannot talk about what the other person said during mediation, or what the mediator said. And you cannot force the mediator to testify about anything that went on during mediation. (If you want to read the law I’m paraphrasing, it’s Utah Code, Section 78B-10-104.)
The Utah Supreme Court explained why mediation is confidential, saying a “candid exchange of information and ideas can be achieved only when the parties are assured that their communications will be protected from postmediation disclosure.” Reese v. Tingey Construction, 2008 UT 7, ¶ 8.
In other words, you won’t talk and negotiate as freely in mediation if you know the other side will use it against you after mediation.
There are a few exceptions to mediation confidentiality:
- Everyone could agree to talk about what went on in mediation. (As far as I know, this has never actually happened.)
- Written agreements produced during mediation are sent to the Court, so the Court does see that end product of mediation.
- If unreported incidents of child abuse, elderly abuse, or abuse of an incapacitated person come out during mediation, those will be reported.
- Computer crimes will be reported. Most common computer crimes are identity theft, filing false tax returns online, and child pornography. (I’ve never had this come up in any of our cases, but some mediators have had it happen.)
- If one party engages in fraud or duress (threats), that may, may be brought up after mediation.
Really, when you think about these exceptions, they don’t affect many mediations (like, hardly any), so almost every mediation will be completely confidential.
Utah Courts take mediation confidentiality so seriously that if a judge even reads documents discussing what went on in mediation, the judge will likely have to stop working on the case and transfer it to another judge, and the documents will be sealed. Lyons v. Booker, 1999 UT App 172 ¶ 9.
The big takeaway from this is mediation is a safe space. You can say what you need to, and make whatever offers you want, and know that the other person cannot use it against you in court.
Hope this helps you breathe a little easier and prepare a little better for your mediation.
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