Arbitration or mediation?

Mediation and arbitration are terms often used interchangeably. In truth, arbitration is very different from mediation. Here are the two most important differences to understand concerning arbitration versus mediation:

Mediation	Arbitration
Mediators need to be agreed upon by both parties. If you and the opposing party are not on good enough terms to select a mediator together, one party may choose a mediator and the mediator can contact the other party to see if they are willing to mediate. Mediators ethically cannot accept a case without both parties agreeing to mediate before them.	Arbitrators may be selected by one party without the input of the other party. Corporations often have written into arbitration agreements clauses stating that they will select the arbitrator without input or consideration from the other party.
The mediator never decides the outcome of the case. Mediators may assist both parties equally in brainstorming solutions to conflict. The parties decide the settlement terms.	Arbitrators are decision makers. Whether the arbitration is binding or non-binding, the arbitrator is hired with the sole intent of making a decision in the case after hearing from both parties and any evidence they may present.

Mediation and arbitration are both forms of alternative dispute resolution. Arbitration can be an appropriate choice in complex cases. If you are entering arbitration you should seek the advice of legal counsel due to the nature of the decision making process.

If you are in conflict with another individual, mediation could be the right solution. Many divorce and custody cases can be mediated, saving both parties money and time. If you are interested in having your case mediated, call Utah Family Mediator, Rebecca H. Symes at (801) 899-6338. I look forward to helping you resolve your conflict in a timely, cost-effective manner.

Questions to ask when selecting a mediator

The circumstances of your case will often dictate what background your mediator should possess. In Utah, with the exception of new divorce filings, you may select anyone you desire to mediate your dispute.

When selecting a mediator there are several points you should consider:

Will the mediator be neutral and fair to all parties?

Since (in Utah) anyone can mediate your dispute, why not let Uncle Joe or Betty around the corner mediate? It is nice when those who care about you want to help keep the peace. When it is someone we know and who cares about us, it seems despite the best of intentions all neutrality melts away eventually. It is human nature to have an opinion or bias. The mediator's job is to avoid having a bias. Mediators come to the table with no connection to either party and very basic knowledge of the dispute. By waiting until the mediation to gather detailed information, the mediator avoids formulating an opinion of the parties and the dispute ahead of time, further ensuring neutrality. Professional mediators have undergone hours upon hours of training, practicing the art of setting their own thoughts and opinions aside so they can remain truly neutral.

What are the qualifications of the mediator?

Professional mediators and arbitrators are typically attorneys, therapists, paralegals, law students, and retired judges. Mediators may receive their training in law school, graduate school or through court approved not-for-profit organizations such as Utah Dispute Resolution.

The Utah State Administrative Office of the Court maintains a roster of ADR professionals (mediators and arbitrators) with professional training and education in alternative dispute resolution. Court rostered mediators must complete Court approved training/education in mediation/arbitration, pass an ethics exam as well as mediate a minimum number of hours each year. Mediators and arbitrators on the court roster provide biographical information, including their education, professional training and specialties to help you select a qualified mediator. CLICK HERE for the current Utah Court Roster.

Is my mediator on the court roster?

Unfortunately I have come across numerous websites advertising mediation services by individuals claiming to be on the court roster, who were in fact not on the roster. Be sure you hire a qualified professional by name checking against the current roster to verify the mediator you are hiring is in fact in compliance with the requirements of the Administrative Office of the Courts. CLICK HERE for alphabetical listings on the current Utah Court Roster. If you suspect someone is advertising credentials they do not possess or practicing law without a license you may file a complaint with the Administrative Office of the Court or the Utah State Bar.

Why is it important to hire a court rostered mediator?

By requiring mediators and arbitrators to have approved training and annual continuing education in mediation or arbitration, you are assured you are hiring a well-trained professional to handle your case. In cases where mediation is court-ordered, you must use a court rostered mediator. For example, Utah Code 78-31b-5 requires that new divorce filings must be mediated by a qualified, court rostered alternative dispute resolution (ADR) professional with additional training and requirements in divorce mediation.
The courts want you to have your case mediated by a competent professional who will provide you with the best chance of settling your dispute without lengthy and costly litigation.

Can my attorney act as the mediator for my case?

Your attorney was hired to represent you and your interests in the dispute. It would be a conflict of interest for your attorney to mediate a case for you. Because he is charged with representing your interests it would be impossible for him to act with the neutrality of a mediator. It would also be a conflict of interest and violate the code of ethics for a mediator to assist you in court proceedings, meaning your mediator may not prepare court documents or act as your legal representation in court.

Will the mediator decide what the outcome of my case will be?

A mediator will not tell you how to decide your case. If you are interested in settling your case out of court using a third party decision maker, you may wish to hire an arbitrator. I will explain the difference between arbitration and mediation next week and then back-link to this post.

If you and your attorney are seeking arbitration rather than mediation you would benefit from hiring an attorney or retired judge to act as an arbitrator.

Additional considerations

Specialties

Mediators come from a wide variety of specialties and backgrounds. Some mediators specialize in domestic/family law while others focus their practice on business and contract disputes. The court roster is sortable by specialty to help you find the right mediator for your case.

Availability

The court roster lists mediators across the state of Utah. Location and hours are important to consider when selecting a mediator. Utah Family Mediator, Rebecca H. Symes has locations across the Wasatch Front and offers evening and weekend appointments, as well as traditional weekday appointments to accommodate the needs of clients. She also mediates cases outside the Wasatch Front for an additional fee.

Whatever your questions may be, it is important for you to ask. Feel free to give me a call today at (801) 899-6338. I look forward to speaking with you.
           

Making mediation safe in cases of domestic violence

The nature of violent relationships, or those that have experienced an episode of domestic violence, is one of high conflict. When there are high levels of conflict it is no surprise that divorces and custody battles are often contested, leading to court ordered mediation.

Can parties that have experienced domestic violence mediate?

With the help of a well-trained mediator, both victims and perpetrators can safely mediate the issues involved in a divorce or custody dispute. Many mediators specializing in divorce and family law have received specialized training in customizing mediation to meet the unique needs of all parties involved in domestic violence. You should inquire as to the credentials of your mediator if this is of concern to you. Mediators have a code of ethics which includes client confidentiality. This means if you disclose to the mediator you have been the victim of domestic violence and would like your mediation customized to offer you heightened safety, your mediator can accommodate that request, without having to inform the other parties involved without your consent. State law does require however that mediators break confidentiality if child or elder abuse is reported to them, if it has not previously been brought to the attention of the authorities.  

Heightened Safety During Mediation

A variety of options exist for mediation between parties in high conflict (i.e. victims and perpetrators of domestic violence). 

Shuttle Mediations

Parties can attend the mediation at the same time and in the same general location with the mediator “shuttling” between two conference rooms to convey the offers and concerns of both parties, until an agreement is reached or the mediation is suspended. During a shuttle mediation, parties need not see one another and the mediator can arrange for one party to arrive prior to the other and depart after the party has left the premises. For example, John and Jane are to mediate their divorce. The mediator has John arrive at 11:45am and shows him to conference room A. Jane arrives at 12:00pm and the mediator shows her to conference room B. The mediator shuttles between the two parties and two rooms. John and Jane never see one another. Jane leaves at 3:15pm (at the direction of the mediator) and John leaves at 3:30pm. Jane arrives after John and leaves before him, so he never sees her or has an opportunity to approach her outside the mediation.

Telephone Mediation

Telephone mediations can involve either a conference call initiated by the mediator, or they can be similar to a shuttle mediation with the mediator conducting all mediation by telephone, and then conveying the information to the other party. One party may participate by telephone while one party is in the office of the mediator, if distance is the primary reason for choosing telephone mediation. 

Email/Skype

The principles of telephone mediation may be employed to conduct mediations via email or Skype as well.

For details on how your mediator conducts long distance or out-of-office mediations speak with her directly. It is the preference of Utah Family Mediator, Rebecca H. Symes to conduct mediations via telephone shuttle/conference depending on the needs and preferences of the parties when in-office mediation is not an appropriate option, whether for distance or for other reasons.

Security

Whether you choose to mediate in the same room or via email, the safety of all parties should be of the highest concern to your mediator. Often, face-to-face or shuttle mediations with Utah Family Mediator, Rebecca H. Symes take place at the county courthouse in your area rather than in a private office. Mediation is not an appropriate time or location to bring a weapon. The courthouse offers the benefit of screening equipment upon entrance, which deters either party from carrying a weapon into a mediation.  Mediation is a safe environment where parties come to work toward common goals. For high-conflict couples, working with a well-trained mediator helps reach a balance of power and an agreeable outcome on many issues of contention.

Rebecca H. Symes, Utah Family Mediator, has served on domestic violence coalitions across the state of Utah working with shelters across rural and metropolitan Utah. She has previously worked with Utah Legal Services on the LAVA (legal assistance for victims of abuse) project. A great deal of Rebecca's research during her years at the University of Utah focused on domestic violence.
To schedule a mediation with Rebecca, call (801) 899-6338.

What is a No-Court Divorce?

You may have seen advertisements for a “no-court divorce” there are a few things you should know about divorce in Utah before contacting one of these agencies.

“No-Fault” is Not the Same as “No-Court”.

Utah allows for a no-fault divorce, meaning the reason for the divorce is irreconcilable differences. This simply means neither party is alleging adultery, neglect or other damages as the cause of the divorce. Basically, you are telling the court “we’ve given it our best shot and we simply don’t get along and can no longer live as husband and wife.” No-fault divorce may or may not be contested.

Contested or Uncontested

When any issue in the divorce cannot be agreed upon by both parties, such as property and asset division, distribution of debt, spousal or child support or parent time and custody, a divorce is considered contested. Utah law requires that all parties to a contested divorce participate in at least one mediation session in good faith, prior to the court hearing the issue. The court has faith in the mediation process and in the parties' abilities to best resolve their own disputes. Many issues can be resolved in mediation. When parties are unsuccessful in reaching an agreement on one or more issues in mediation, the court will decide the issue and finalize the divorce. Contesting a divorce will not stop the proceedings but merely slow them down.

Uncontested divorces are typically known as a “no-court” divorce because both parties agree to all terms set forth in the proposed divorce, and the respondent (the party who did not initiate the divorce) signs an acceptance and waiver. Uncontested means you and your spouse are able to agree on every detail of the separation and divorce, including the division of all assets and debts as well as custody, parent time, and property. An uncontested divorce can be filed with or without the help of an attorney. If you choose to proceed with an uncontested divorce, without an attorney, you may find the forms online to file your divorce using OCAP (online court assistance program).  

Whether contested or uncontested, emotions run high during a divorce or separation, and agreeing on complex decisions might prove difficult. However, it may be accomplished with the assistance of a mediator.  Mediation provides an opportunity to resolve your conflict in unique and equitable ways designed by you and the other party, not refereed by the court.

Mediation and the “No-Court” Divorce.

Mediation is a useful tool for both contested and uncontested divorces. It can ease the pain of divorce by helping you avoid unnecessary litigation and achieving a peaceful separation.

Mediators cannot represent you or prepare divorce forms for you. Be wary of mediation agencies or practitioners who offer such services. Mediators may provide you with a written memorandum outlining the agreement reached between all parties in a mediation. You may use OCAP to prepare your divorce paperwork and include the mediated agreement in your petition. It is against Utah statute for a mediator to prepare your divorce paperwork for you, even in uncontested “no-court” divorces.

If a no-court divorce is in your future, mediation can be the first step in reaching those important decisions. Reaching agreements early in the divorce process will save you time and money, and allow you to move beyond this difficult period and onto the new life you desire. To schedule an appointment with Utah Family Meditator Rebecca H. Symes call (801) 899-6338.