Regarding: Explanation of Mediation
This is a form letter explaining the mediation process. Since this is a form letter, it is a general explanation of the process and not specific to your case. If you would like greater explanation regarding mediation, please, feel free to call us and ask any questions you may have. We will be happy to speak with you.
Mediation is an alternative dispute resolution process, and is mandatory in many cases in many parts of Utah. Most notably, mediation in contested divorce cases is required by specific rule in Salt Lake City and surrounding counties. It is also required when a party files a Petition to Modify a Divorce Decree when that modification includes custody or parent-time issues. Also, while not mandated by specific rule, courts usually require mediation in paternity cases.
While the Court might order mediation, mediation is ultimately a voluntary process based on good-faith negotiation. The parties come together (usually not in the same room; that is just awkward), and with the help of a mediator to discuss their situation and negotiate toward a settlement everyone can live with.
The mediator is a neutral third-party and not a judge. He or she does not hear evidence or testimony and render a decision as a judge would. Instead, the mediator listens to the parties and helps facilitate communication and help the parties negotiate a settlement based on their particular circumstances.
The parties’ attorneys are usually present during mediations (1) to ensure the parties negotiate effectively, and (2) to ensure the parties’ rights are safeguarded. (I will be with you at mediation.) Other people not actually parties to the lawsuit (e.g., new spouses, significant others, parents) may attend, but many times (if not most) their presence is counterproductive.
If mediation is successful, you will reach an agreement and sign a settlement agreement. If you sign an agreement during mediation, you should assume you will be bound by that agreement. Attempting to change a signed mediated settlement after you have agreed to it in writing is very difficult, unless the other party agrees of their own free will. Usually, forcing the change of a mediated settlement can only be done if the other party committed some sort of fraud, and you would need to go to court to force a change. Of course, this applies to the other side as well, which means if you do not wish to change a mediated settlement, you do not have to, and they will have a very difficult time attempting to force a change in court.
Mediators, like everyone else, charge for their services. They usually cost between $100 and $200 per hour – i.e., $50 to $100 per hour per person. You are responsible for mediation fees.
We tell our clients to plan on at least four hours for mediation, although it may take longer. (Sometimes mediations only last two to three hours, but mediations that short are usually unsuccessful.) Please bring a credit card, check, or cash to pay the mediator. Payment will be calculated at the end of mediation.
We always use the best mediators possible for our cases in hopes to settle cases before the cost and stress of trial.
Mediation is confidential. This means what is said during mediation cannot later be used in court, and the mediator cannot be forced to testify. The only exceptions to this are previously undisclosed abuse of a child or vulnerable adult or computer crimes (e.g., e-filing a false tax return or internet child pornography). The reason for this confidentiality is courts want the parties to speak and negotiate as freely as possible.
Finally, in order to address alimony or child support, a Financial Declaration will need to be filed. If you have not already completed a Financial Declaration, please do that as soon as possible. Our goal is to have Financial Declarations filed at the beginning of the litigation process. If Financial Declarations are not filed in a timely manner, it may cause a delay in your mediation or preclude you from asking for, or arguing effectively for, child support and/or alimony.
Hopefully, this letter has helped explain the mediation process. Again, if you have any questions regarding your case, please call 801-685-9999.
/s/ Marco Brown