What to Expect at Mediation?
I have found that I do not have to get all of the parties seeing eye-to-eye in order to resolve the case; I simply need to get the parties sufficiently close enough that they feel like they cannot afford to do anything else but settle the case.
– Jason F. Barnes,
A Utah Court Rostered Mediator
Mediation is not a time for the parties’ attorneys to argue their case, that is done in Court. Instead mediation is a process that is carried out between the parties and the mediator to explore solutions to the parties’ differences.
Initially, it is important to understand two core characteristics of mediation: Mediation is Voluntary and Mediation is Confidential.
We say mediation is “voluntary“, but in reality a lot of judges will require the parties to attend at least one mediation. In fact, in divorce cases it is actually a requirement before the parties can obtain a trial date. Therefore, what do we mean when we say it is “voluntary”?
Rule 101 of the Utah Rules of Court-Annexed Alternative Dispute Resolution states in part that:
(c) All parties shall be present, shall be prepared to discuss, and shall have the authority to fully settle, all relevant issues in the case.
(g) The parties may terminate the proceedings at any time.
As such, the parties must come to mediation, listen to the opening statements, be prepared to discuss the issues, and once they have done that they can voluntarily end the mediation. However, most people truly do want to resolve their case disputes and will enter into serious and detailed negotiations.
The reason behind the requirement that mediation remain “confidential” is so that the parties can open up, without fear, and really explore possible solutions to their problems. For this reason, the parties cannot audio and/or video record any portion of the mediation conference, they cannot subpoena the mediator to testify, they cannot go out on social media and disclose what was said, and most certainly they cannot bring up to the Court any part of what was said during the mediation. Only the outcome of the mediation (i.e. settled, not settled, party did not show up, etc…) and a written agreement that was signed in connection therewith may be brought up to the Court.
Along the lines of “confidentiality”, it is also important to know that during the mediation conference, it is perfectly acceptable for the mediator to meet or consult separately with one or more participating parties, or even divide the conference into groups of fewer than all the parties. Information disclosed to the mediator during separate consultation (i.e. while the parties are caucused) that a party has asked remain confidential does not have to be disclosed to the other side and in fact it is just fine for that information to remain confidential.
There are only a few exceptions to the rule of confidentiality, one of which is in regards to the disclosure of information relating to the abuse of a child which was not previously reported to state officials.
If the parties are able to reach an agreement during mediation, then that agreement is often memorialized in the writing, signed by all the parties, and filed with the Court.