Mediation

What Is Mediation?

The purpose of mediation is to allow spouses to negotiate a settlement between themselves before proceeding to a final court order. In most cases, spouses will be required to participate in at least one session of mediation and attempt to resolve the issues in dispute. Mediation must have been attempted before the case can move forward in the court system, unless the spouses are excused from the mediation requirement for good cause. Note that the spouses themselves are responsible for identifying and paying a mediator, and unless otherwise ordered by the court or agreed by the parties, the cost of mediation should be divided equally between them.

Parties who do not feel their case is appropriate for mediation may be excused for good cause by the court, the Alternative Dispute Resolution (ADR) office, or a Court Qualified Mediator. Either party can ask the court to excuse the mediation requirement by filing a Motion to Excuse Mediation. If excused by the ADR office or a Court Qualified Mediator, a notice will be sent to the court to allow the case to move forward. Reasons a couple may be excused from mediation will vary from case to case, such as if a partner has a history of domestic violence and has a threatening demeanor towards their spouse that would make mediation inefficient. Note that if spouses do not get along well, mediation could be done by “caucus,” where the parties will be in separate rooms and the mediator will shuffle between the two.

To prepare for mediation, the mediator will usually ask for short, typed summaries of the dispute and what each party wants to accomplish during mediation. If litigation has already begun, the mediator will also likely ask for court documents that explain the dispute. Then, during mediation, each spouse will elaborate on the dispute from their point of view for the mediator, who will then ask the parties to identify the issues that need to be resolved. From there, the mediator will help the parties discuss openly with each other until every issue is resolved in a way that is acceptable to the parties and is mutually beneficial. If only some of the issues are resolved in mediation, the rest of the issues must be determined in trial. It is possible that if mediation is not successful on the first attempt, spouses may try again after litigation does not seem ideal.

Once a mediated agreement has been reached, the mediator will write up the agreement, and the spouses will review and sign it. Once signed, the agreement will become a legal contract enforceable in court.

It is advisable to have a lawyer present during mediation to help ensure a fair agreement is reached. A lawyer can help the parties evaluate offers being made and discuss options and risk. While a mediator is trained to facilitate discussion and negotiation, a lawyer can better evaluate your best interests and keep your legal rights as a former spouse in mind.

Why Mediation?

Mediation is appropriate in family matters, especially involving children and significant assets because it encourages collaborative problem-solving between spouses. Mediation provides an opportunity for direct communication and the exchange of information that can be critical to the successful resolution of disputes, such as parenting time agreements.

Additionally, mediation also offers an environment suitable for identifying and addressing the strong emotional issues associated with divorce conflicts. The mediation process is structured to focus parties on resolution and, when children are involved, the best interests of their futures. The informality and flexibility of the mediation process as opposed to a conventionally adversarial trial room allows issues to be discussed more openly and comfortably.

In summary, mediation allows individuals to:

1. directly participate in finding solutions to the issues in dispute;
2. resolve the case more quickly in a less charged environment;
3. save costs;
4. promote relationships with their former spouse; and
5. avoid stressful court litigation.

If you are going into mediation following a divorce in Salt Lake City, consult an attorney for legal guidance through the mediation process. While mediation is facilitated by a third-party specialist, the primary goal of a mediator is to encourage open discussion between spouses to reach an agreement. An attorney can better ensure that your rights are not being infringed upon in the settlement agreement and that the agreement is fair and reasonable for your post-divorce recovery, The legal team at Christensen Law can better help you navigate mediation with your best interests in mind.

A family court will evaluate a proposed custody arrangement or determine one for the parents by examining how the arrangement will serve the child’s best interests. Primary factors to be considered include:

1. the child’s physical and emotional needs;
2. the child’s relationship with each parent;
3. the distance between the parents’ residences;
4. each parent’s physical and mental health;
5. the child’s ties to the community, sibling relationships, and relationships with extended family members;
6. each parent’s willingness to encourage a relationship between the child and the other parent;
7. either parent’s history of domestic violence;
8. the child’s preference if of sufficient age and maturity; and
9. any other factor the court deems relevant.

It is possible to modify an existing child custody order if there has been a material change in circumstances affecting the child or parents, or if more than 3 years have passed since the previous custody order. When evaluating a modification request, the judge will accept or deny the change based on whether the modifications serve the child’s best interests.

Complex Property Divisions

In addition to child custody, property division will be an important topic of negotiation, especially when it includes common property like the family home in Salt Lake City, UT, personal property like jewelry and furniture, and financial assets like earned incomed and benefits. Utah approaches property division according to equitable distribution that is fair and reasonable (not necessarily 50/50) based on each spouse’s contribution to the marital property and their projected future needs.

Note that the discussion around property distribution will depend heavily on what property belongs to the marriage (marital property) and what property belongs to the individual spouses (separate property). Generally, marital property is anything acquired or earned during the marriage, including earned income. Separate property is anything that belonged to one spouse before marriage and was kept separate throughout the marriage, such as gifts or inheritance given only to one spouse (even during the marriage). However, separate property that is commingled with marital property renders it marital property by law, as it becomes property used for the benefit of the marriage, even if it began as separate property.

Let Christensen Law Guide You

If you are facing family-related legal issues right now following a separation from your spouse, do not hesitate to contact a family lawyer in Salt Lake City, UT to help you navigate the legal aftermath. Whether you have concerns regarding alimony calculations, child custody orders, and property division methods, an experienced family law lawyer serving Salt Lake City can help. The advocates at Christensen Law have years of experience guiding clients through their family law matters and can help you navigate your negotiations in the courtroom and the mediation room.