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MEDIATION FAQ - Why Mediate Your Divorce?
- What Is Divorce Mediation?
- What Is the Process?
- Should I Have an Attorney?
- Who Else May Be Present at Mediation?
- Who Else May Assist You?
- How Mandatory Is "Mandatory" Mediation?
- What If there Is a History of Domestic Violence or Abuse?
- What Must Be Disclosed?
- What Remains Confidential?
- Where Can I Find the Actual Laws?
Q. WHY MEDIATE YOUR DIVORCE?
A. Mediation is efficient. It can resolve disputes more quickly and inexpensively than litigation.
Mediation is 100% voluntary. It allows you to reach a settlement that works for you. Your agreement reflects your needs and interests – not those of a judge or the state legislature.
Mediation may work better in the long run. Studies show that divorces resolved through mediation – even through mandatory mediation – lead to fewer future disputes and more constructive parental involvement.
Mediation may minimize the trauma of divorce. Litigation can increase conflict. At least one of you is likely to feel like you “lost.” Mediation, by contrast, addresses not only the end of a relationship (your marriage), but also the start of a new one with different roles and expectations. With the help of a neutral third party, you begin discussing for yourselves just what that new relationship will look like.
Q. WHAT IS DIVORCE MEDIATION?
A. Mediation is a form of negotiation. Instead of sitting down with your spouse and trying to resolve everything yourselves, the mediator helps you to address and resolve issues in a way that works for you. It is voluntary and no one can force a decision upon you – you remain the ‘deciders.’
The mediator is a neutral third party. In divorce mediation, the mediator knows what issues must be addressed in any settlement that is subject to court approval. The mediator will also help you address issues that are especially important to you.
The mediator can help you get past what seem like intractable disagreements.
The mediator is not a counselor. While professional counseling may be appropriate for you or your children, this is not the purpose of mediation.
The mediator is not a legal advisor, and may not give you legal advice. You are strongly encouraged to consult with an attorney before and during mediation. Q. WHAT IS THE PROCESS?
A. At FAIR CHANGE, you will be asked to provide some initial information. Then you will be asked to sign an Agreement to Mediate. (The agreement explains some of the process.)
Actual mediation usually begins with an explanation of how we will proceed, followed by an opportunity for you to explain what especially you hope to accomplish. We then will address parenting and financial issues.
We will schedule 3-hour mediation sessions. Some mediations settle within one session. Others take several sessions.
If you reach an agreement, the mediator will draft a Memorandum of Understanding (MOU). The MOU is the mediator’s understanding of your agreement. It is not binding. If you wish to change your agreement any time before the court approves the final paperwork, you are free to do so.
The MOU can be used as a guide for completing the Utah State Court online court at www.utcourts.gov/ocap/. You may also give it to your attorneys, and one of them can complete the final paper work for the judge to sign. Q. SHOULD I HAVE AN ATTORNEY?
A. Having an attorney is highly recommended, but not required.
Your attorney can attend mediation with you. An attorney at mediation typically acts more as an advisor than an advocate. Your attorney can answer your questions, suggest options, and help you understand your options in court should mediation not produce an agreement. Mediation often takes less time if an attorney is present.
An option to having your attorney at mediation is to meet with the attorney before hand or between sessions to gather information about how certain issues might be resolved.
At FAIR CHANGE, we strongly recommend that you discuss the MOU with an attorney before the MOU is used to prepare the final divorce paperwork. It is important to get things right the first time because, unless both parties agree to make a change, most terms in the final divorce papers signed by the judge may not be changed unless substantial, unforeseen changes occur that make the original terms unfair. (There are different rules about changing child support obligations.)
Finally, if attorneys are present at mediation, one of them may reduce your agreement to writing as soon as mediation is concluded. When this occurs, there is no need for an MOU. Q. WHO MAY BE PRESENT AT MEDIATION?
A. Utah law allows each of you to bring one person to mediation. This could be either your attorney, or one other person. Neither party may bring more than one person unless both parties agree.
Q. WHO ELSE MAY BE OF ASSISTANCE? A. Divorce can involve complex parenting and financial issues. Input from experts may be useful. You may individually seek expert information; or, you and your spouse may agree upon an expert to provide advice to both of you. These experts may include:
Mediation Parenting Consultants. – A trained professional can help parents identify parenting and time-sharing strategies that will serve the kids’ best interests. This is similar to a Uniform Custody Evaluation sometimes ordered in contested divorces, but it is less time consuming and less expensive. Financial Analysts. – A financial analyst can help you wade through the numerous financial issues that may arise during divorce, such as valuing assets, and what to consider when dividing them. These may include certified public accountants or certified financial planners, some of whom may have special training for divorces. Stock brokers, bankers, insurance agents, and money managers may also be of assistance. Actuaries. – An actuary may assist in valuing a pension or retirement plan. Business Appraisers. – A business appraiser can determine the financial value of a business based upon a detailed analysis. Real Estate Agents and Certified Appraisers. - If a home or other real property is involved in your divorce, these professionals can help determine the home’s actual and market value, which, in turn, may assist you in determining how to handle this property in the divorce. Counselors. – As you may already understand, ending a marriage may be a very scary, emotional and stressful time for everyone involved. At FAIR CHANGE, you are strongly encouraged to consider whether counseling from a trained professional is appropriate for you or your children. Credit Counselors. – Perhaps you and your spouse are already getting calls from debt collectors, facing wage garnishment, potential bankruptcy, etc. A credit counselor can help you set up payment plans and develop constructive strategies for getting out of debt.
Q. HOW MANDATORY IS “MANDATORY” MEDIATION?
A. When mediation is required by the court, the parties may withdraw at any time following the mediator’s introduction to the process. If you do not reach an agreement, the mediator will notify the court that no agreement was reached. The mediator’s report to the court will not go into detail or attribute fault.
Q. WHAT IF THERE IS A HISTORY OF DOMESTIC VIOLENCE OR ABUSE?
A. Domestic abuse and violence are serious concerns. You are strongly encouraged to respond honestly to questions regarding a history of such violence, existing protective orders, and safety concerns.
If no protective order prevents you from meeting for mediation, and if both parties honestly feel safe to negotiate free from fear of actual violence or abuse, FAIR CHANGE can mediate your divorce.
If, however, there exists a current fear of violence or abuse, FAIR CHANGE will refer you to a mediator who has received special training to evaluate whether mediation should occur under such circumstances. If that mediator concludes mediation may proceed, s/he will also determine how best to conduct the mediation with the parties’ safety and ability to negotiate free from fear as primary concerns.
Q. WHAT MUST BE DISCLOSED?
A. All information necessary for you and your spouse to make informed decisions regarding your children, budgets, property, assets, debts, finances, child and spousal support, retirement, etc., must be disclosed. By signing the FAIR CHANGE Agreement to Mediate, you are agreeing to full disclosure of all information necessary for both parties to reach informed decisions regarding the divorce.
Where, for example, there exists uncertainty or disagreement about the value of an asset, or the extent of debt, you and/or your spouse may be assigned the “homework” of obtaining a recent account statement to resolve such doubts.
Q. WHAT REMAINS CONFIDENTIAL?
Most of what is said and written during mediation cannot be used in later court proceedings. Confidentiality encourages everyone to brainstorm and propose compromises without worrying whether these offers can be used against you in later court proceedings.
This means a court cannot force you to repeat anything you said during mediation. Nor may the court force you to produce any records, tapes or memoranda prepared for mediation.
The mediation itself must be conducted in private, and may not be recorded in any way.
By signing the FAIR CHANGE Agreement to Mediate, you agree not to ask the court to force the mediator to testify about or produce anything prepared in mediation.
In other words, most of what is said or happens in mediation, stays in mediation.
There are very important exceptions to this rule! Utah law requires every person to report abuse, neglect or exploitation of a minor, or of an elderly or incapacitated person. Therefore, if the mediator learns of any such abuse, the abuse must be reported to the police.
At FAIR CHANGE, the mediator reserves the right to report or disclose information the mediator believes is necessary to prevent death or serious bodily injury, or to prevent substantial financial loss occurring through crime or fraud.
You agree to these terms by signing the Agreement to Mediate. If you have any questions, please ask before signing!
Q. WHERE CAN I FIND THE ACTUAL DIVORCE LAWS AND FORMS?
Numerous sources offer explanations of the law, often times including interpretations and opinions. As with everything else, some sources are better than others.
An experienced family law attorney may be the best source for information.
Several companies publish books and post legal information. One for-profit publisher is Nolo, which offers various articles and books at www.nolo.com. However, most such publishers do not specifically consider Utah state law. This is important because information based upon another state’s laws may not apply in Utah.
The State of Utah has published the actual laws of Utah, including those pertaining directly to divorce and financial support issues, which begin with Utah Code § 30-3-1. Utah laws pertaining to calculating child support begin at Utah Code § 78-45-1.
Laws pertaining to court approved alternative dispute resolution, including mediation, can be found at Utah Code § 78-31b-1 (ADR Act), § 78-31c-1 (Uniform Mediation Act), and § 30-3-39 (domestic mediation program).
Another state website offers court forms, including a child-support worksheet on which you may calculate child support, at www.utcourts.gov/ocap/.
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