If you get divorced in Utah, you may be surprised to learn that you are required—unless you are excused for good cause—to attend at least one session of mediation before you can set a trial date. The requirement is clearly outlined under Utah Code Section 81-4-403:
§ 81-4-403. Mediation requirement.
(1) There is established a mandatory domestic mediation program to help reduce the time and tensions associated with obtaining a divorce.
(2)
(a) If there are any remaining contested issues after the filing of a response to a petition for divorce, the parties shall participate in good faith in at least one session of mediation.
(b) The requirement described in Subsection (2)(a) does not preclude the entry of pretrial orders before mediation takes place.
(3) The parties shall use a mediator qualified to mediate domestic disputes under criteria established by the Judicial Council in accordance with Section 78B-6-205.
(4) Unless otherwise ordered by the court or the parties agree upon a different payment arrangement, the cost of mediation shall be divided equally between the parties.
(5) The director of dispute resolution programs for the courts, the court, or the mediator may excuse either party from the requirement to mediate for good cause.
(6) A mediation described in this section shall be conducted in accordance with the Utah Rules of Court-Annexed Alternative Dispute Resolution.
You may ask, “Why would this be a waste of time?” Clearly, the intention behind mandatory mediation is to reduce the time and tensions associated with obtaining a divorce (it says so right in the statute, after all). Isn’t that good enough?
It is a nice thought, but like so many well-intentioned ideas, it’s based upon a flawed belief that “people will settle in mediation if they go to mediation.” The flaw lies in believing that mediation creates settlements. It does not. The truth is that unless the parties both want to try to resolve their dispute by agreement forcing them to negotiate when they do not want to negotiate is a waste of time, money, and effort.
If the parties to a divorce truly want to settle the divorce, they can do so without mediation.
Parties that refuse to budge on the issues in their divorce case will see mediation as a hoop to jump through, a box to check before “the real” resolution of the issues takes place in court. Regardless of the requirement to participate in good faith, if the parties are unwilling to seek agreement, mediation is a waste of time and money. Making people who don’t trust each other meet in mediation is at best a speed bump in the divorce process, and at worst, it is an unnecessary and avoidable waste of time and money for both parties. If courts truly want to foster progress in the divorce process and reduce tensions, give parties the option to waive the forced mediation and leave them to negotiate and agree on their own terms, if and when they both desire to try reaching agreement in settlement.
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