Mediation is a form of alternative dispute resolution which helps individuals come to a timely agreement outside of the courtroom. While mediation is less formal than a traditional court case, it still involves several distinct stages designed to achieve positive results. During the mediation process, the mediator helps both parties evaluate their goals and find a mutually satisfactory solution.
Typical family law mediation has six stages.
Step One: Getting Started
To start the first session, the mediator will make an opening statement and set the tone of the session. They will also introduce everyone and explain the goals and rules of the mediation.
Step Two: Opening Statements
After the mediator establishes the rules and goals of the session, each party will have the opportunity to make an opening statement. During this statement, you can explain, in your own words, what the dispute is about and how you have been affected by it.
Step Three: Discussion
Once each party has a chance to describe the dispute from their point of view, the mediator will open the floor and begin a discussion about what was said in the opening statements. During this time, our mediators focus on asking open-ended questions which encourage a frank dialogue about what issues need to be addressed. In a family law case, these issues may include:
• Property division
• Visitation schedules
• Child support
Step Four: Private Meetings
Known as a private caucus, this step is an opportunity to discuss the strengths and weaknesses of your position privately with the mediator. You can also develop new ideas for the settlement. Depending on your needs, your mediator may meet with each party only once or several times.
Step Five: Negotiation
After the private meetings, the mediator will bring the parties back together to negotiate directly. During this stage, you and the other party will work to refine a final agreement which meets your needs.
Step Six: Closure
There are two possible endings to a mediation session. If an agreement is reached, the final stage of the process is putting the main provisions in writing. Your mediator may recommend having the agreement reviewed by your personal lawyer. In most cases, the mediated agreement will need to be approved by a judge to become official.
The Advantages and Disadvantages of Mediation
Mediation is becoming an increasingly popular route to take when solving disputes. In many cases, it is even considered as the first step of the court process as it is becoming more and more integrated into proceedings. The reason for its popularity stems from the fact it is designed to settle disagreements amicably without the need of going to court. This saves all parties both time and money. In many cases, disputes appear unfixable simply because communication between two people has broken down. Mediation offers an opportunity to rebuild that communication by bringing everyone involved together on neutral ground. To ensure fairness during this process, all sessions are conducted by an impartial third party known as the mediator. The role of the mediator is to give everyone the chance to tell their side of the story and explore solutions with the potential to keep both sides happy. There are many advantages to using mediation as an Alternative Dispute Resolution (ADR), but there are a few potential drawbacks you need to be aware of too.
Mediation is more Cost-Effective than Court: One of the biggest advantages of mediation is that the costs are considerably lower. The hourly rate for a mediator may be lower than the rate to hire a solicitor, though it’s important to remember the more experienced your mediator is, the higher their rate will be. That being said, if you can resolve the issue early, you could save hundreds if not thousands of pounds that would have been spent on court costs.
Mediation Can Save You Time: The court process can be long and difficult, especially if you have a complex case, but one of the advantages of mediation is the amount of time it can save you. On average, a resolution can be reached through mediation within three months and with fewer sessions than if you were to go to court. It’s also a more flexible process, as mediators can work weekdays (including evenings), as well as weekends. This can benefit you greatly if you have to arrange sessions around your work or family life.
Mediation is Private & Confidential: In many instances, you might not want the world to know you are going through a dispute. This could be due to wanting to protect your reputation, having a high-profile or public career, or sparing you and your family any unnecessary embarrassment. It’s also important to keep in mind that whatever is said in a mediation meeting is kept between the two parties and the mediator. This means in the event negotiations break down, the courts can’t be swayed either way by your discussions, giving both sides the chance to state their case anew.
Looser Evidence Rules: Mediation is not the same as going to court. The evidence you present is not limited by normal court rules, and you may be able to include information that would not normally be considered. This can be a massive advantage if you have any concerns that you’ll struggle to prove your loss under the scrutiny of full litigation.
Mediation Can End Amicably: One of the key advantages of mediation is that it gives both parties involved a way to solve things in a way that’s agreeable to both sides. Since the results of mediation can’t be enforced, if it works, it’s because both parties have come to an agreement. It gives the two sides a chance to discuss the issue in a controlled environment and means no one is left feeling too hard done by.
• There are No Guarantees: The main disadvantage to mediation knows there may be a chance negotiations could fall through. If the other side is adamant they are right, refuses to listen to what you have to say, or won’t agree to mutually beneficial terms, then the case could end up going to court anyway. On top of that, you also have to consider the financial implications. While mediation is an inexpensive process when compared to going to court, the cost of mediating will be added to the cost of going to court if negotiations break down.
• You Might Want to go Public: We listed privacy as one of the advantages of mediation, but in some cases, this might not work in your favour. If you’ve been accused of something publicly, then you may want the public vindication that comes with a court case. Alternatively, you may want to set an example for other people in your position. In a private setting, the dispute might be resolved for you, but there could be other workers, customers or clients who need to be aware of who they are involved with.
• Mediation Requires Cooperation: Ultimately, mediation is reliant on both sides coming to the table and working towards a resolution. If one side refuses to do so, then mediation may not work for you.
Likewise, tempers can flair and mediation cannot guarantee to keep your interactions civil. The mediator’s job is to limit the possibility of this happening, but there are factors they can’t control i.e. what the two parties say to each other outside of a mediation session.
Finally, attempting cooperation may just not be suitable. In particular, mediation is not always advised in domestic abuse cases. If one side has any reason to fear or feel intimidated by the other party, a successful resolution will not be reached.
Can Mediation Be Mandatory?
Some courts in the Utah make participation in some form of alternative dispute resolution mandatory for most civil actions; mediation is preferred most by the courts. The idea behind requiring some disputes to be handled through mediation is that settlements are more likely to occur sooner. The primary reasoning behind this idea is inertia. Once the parties are forced to sit down and look through their files at the same time, the case is likely to settle rather than taking its time in court. If the parties want to settle, then this imposition does no harm. However, this imposition does not take well to cases that are not suited for mediation. These cases could involve parties that are not looking to negotiate and one party has the time or resources to continue on the mediation process until the other party gives up. In essence, there are some parties for whom settling isn’t an option so mediation could potentially waste time and money. The mediator is able to negotiate between the parties to find a mutually agreeable resolution in the cases brought to them. The requirements to become a mediator vary between states. Mediators are usually lawyers, social workers, psychologists or other professionals who have formal training in mediation. Certification is always required. Parties may select a mediator who is knowledgeable in the areas of controversy that are the subject of the dispute. Mediators can often give each side an expert, yet unbiased, view of the strengths and weaknesses of the case overall. They may also discuss with the parties what might happen if the dispute does not settle. Seeking an attorney, who is experienced in mediation, to represent you is in your best interest. However, having an attorney is not required in mediation hearings. That being said, having legal counsel at the meeting has its advantages.
Consider the following when deciding whether or not to hire an attorney:
• Financial significance of the dispute
• Costs of mediation
• Your financial ability, funds and assets
• The opposition is, or is not, represented
• If you decide not to hire a lawyer to represent you, it would be beneficial to consult with an attorney to prepare for the mediation meetings.
Your Mediation Attorney:
• Will help you through the mediation process. They can also explain your rights and obligations of mediation.
• Can consult you on developing your evidence.
• Could help you with the paperwork and other documents that are required for mediation.
Legal documents can be very confusing and can require knowledge of the law. Attorneys are able to protect you throughout the process or you can use them just for individual tasks such as finalizing the agreement. You may do as much of the work as you want, or of course there are attorneys who are able to counsel you through the entire process.
What Does a Mediator Do?
The role of the mediator is to help and guide the parties to their own resolution. They accomplish this by starting with a joint session and opening statements and then separate into caucuses (separate groups). The joint session also helps define the issues, determines the parties’ positions, sets the ground rules, and outlines agenda. Generally, during the process, parties move to separate caucuses. While caucusing, the mediator will carry messages offers, counter offers, questions, demands, and proposals between both parties, help both sides define issues clearly, and help both sides to understand each other’s positions as to aid them in moving toward a resolution. The mediator does not decide the settlement, as they have no authority to do so. Mediation is not finished until the parties agree on a resolution. If the matter does not settle, the claimant has preserved the right to pursue arbitration or other legal means until a resolution has been made. The need to go through the court system when dealing with private disputes is fading and more people are resorting to alternative dispute resolution methods. Businesses and consumers understand that court trials can be expensive and time consuming, thus making mediation or other alternative dispute resolution methods favored by many people. It is important to understand the differences between the alternative dispute resolution methods because knowing what options are available to you can safe both time and money.
Arbitration and mediation are both forms of what the legal profession calls alternate dispute resolution. In ADR, the parties are supposed to settle their case without involving a judge or the court system. Arbitration is sometimes called “binding arbitration,” because the results are permanent. If the arbiter decides the case, the parties must act accordingly. You can appeal the decision to a higher court in some cases, but not always. Sometimes there is a panel of judges, one chosen by each party and a third neutral party. Each side presents its case, and the arbitration panel decides what should happen. They hand down a decision, and the parties are bound by it.
A deposition is a chance for attorneys to ask questions before the trial. The attorneys will select a witness and serve the correct paperwork. During a deposition, both parties will meet and the attorney who requested the deposition will ask the witness questions to figure out what happened during the accident and determine who is at fault. Depositions are on the record. That means that a court reporter will record every word said by the attorneys and the witness. The witness is obligated to tell the truth. The testimony given in a deposition can and will be used as evidence at trial. Lawyers use depositions to show what happened during the accident and to impeach witnesses who tell different stories in the courtroom.
Mediation is like arbitration but not as binding. It is more about making a compromise. During mediation, both parties and their attorneys meet in the same location, but sometimes in different rooms. The parties must hire a court-approved mediator. They are usually retired judges or well-practiced lawyers who have taken certain classes and been certified by the court system as a mediator. The mediator will listen to both parties. If the parties are in separate rooms, the mediator will move back and forth from one room to the other. He or she will listen to each parties’ story, and then he or she will propose compromises. The parties will decide if they will choose to accept or reject the compromises. The mediator will be frank and explain to each party that he or she may not get what he or she wants.
Utah Mediation Lawyer
When you need legal help with Mediation in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you!
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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