TL;DR: Arbitration–mediation (arb-med) in Utah divorce and family law starts with arbitration, then gives the parties a final chance to settle in mediation before the arbitrator’s decision becomes binding. It saves time, reduces posturing, and provides closure.
The question in virtually every Utah family law cases—divorce, custody, property disputes—is how to get through it without spending months (or years) in litigation and being left financially and emotionally drained. Over 28 years in practice, I have developed a method worth your attention: arbitration–mediation, “arb-med” for short.
How Arb-Med Works
In arb-med, the parties first present their case out of court to a neutral arbitrator (essentially a private judge) who hears evidence, reviews exhibits, and issues a written decision. But here’s the twist: that decision is sealed and not yet binding until the parties complete (or decide to forego) mediation.
After mediation, the same parties go to mediation, with the person or persons who served as their arbitrator(s) now serving as the mediators. At this point, the parties now have a final, ready-to-use decision sitting in reserve. If they reach a settlement in mediation, the arbitrator’s award is never revealed. If they fail to settle, the award is unsealed and becomes binding.
Utah law (see the Utah Uniform Arbitration Act, Title 78B, Chapter 11) allows arbitration agreements in family law matters, and arb-med fits within this framework when properly structured.
Arb-med combines the certainty of a decision with a last-chance opportunity for self-determination:
- Strong incentive to settle. Knowing the arbitral award is ready to drop pushes parties to make mediation work.
- Less posturing. A potentially-binding decision is already made in arbitration, so mediation isn’t a stage for bluffing.
- Time and cost savings. If mediation fails, the dispute is resolved immediately, without trial or further proceedings.
- Emotional closure. There’s no dragging the case out after mediation fails; the matter ends.
- Better compliance. Parties often accept outcomes more readily when they had a final opportunity to control them.
The Critiques of Arb-Med Work Don’t Hold Up Under Scrutiny
Some assert that arb-med has inherent weaknesses. Such as?
· Power imbalances. The mediation may still favor the stronger party, especially in abusive or coercive dynamics.
o First, power imbalances exist regardless of whether one engages in arb-med or conventional litigation and mediation. Arbitration, followed by mediation, clearly reveals the relative strengths and weaknesses of each parties’ case before mediation, resulting in “the power” lying in the legal merits of a parties’ position, not in posturing and threats.
· Perceived futility. If one side believes the arbitrator ruled in their favor, they may see no point in compromise.
o Perceived futility is in the eye of the beholder. No process can prevent one from subjectively perceiving bias whether it actually exists or not. Concern over possible arbitrator bias in the mediation phase is resolved by a facilitative (as opposed to an evaluative) mediation style.
· Extra cost. You pay for arbitration whether mediation succeeds, so why bother with arbitration?
o It’s a fair question. Fortunately, only if you consider the clearer vision the parties have of their respective cases’ strength and weaknesses and the thorough reality check the arbitration phase provides to be of little to no benefit before the parties engage in mediation the arb-med process would arbitration be an “extra cost”.
o In my experience, disputing parties engage in mediation far better prepared after arbitration and in more focused, more efficient negotiations in such a frame of mind. Arb-med helps ensure that the time and money you spend produces something of value—whether that be the arbitral award or a settlement agreement.
Arb-med is worth your consideration. It is not for everyone, but for disputes where both parties want efficiency, privacy, finality, and one last, focused shot at deciding the outcome themselves, it is a powerful alternative to the slow, expensive, and frustrating grind of traditional litigation.
If you want more information on the arb-med process, please contact me. I want more people to know about arb-med and how it can help them better than traditional litigation does.
Eric K. Johnson | Utah Family Law, LC | divorceutah.com | 801-466-9277