Utah wants people to resolve disputes without consuming scarce court time. Mediation does that when it works, so making competent mediation easier and cheaper to get should be an obvious priority. Instead, Utah requires substantial training and supervised experience to join the court mediator roster, then requires roster mediators to provide unpaid services.
There is a better design. Credit what experienced lawyers already know, train and test what they don’t, and award meaningful continuing legal education credit to lawyers who mediate at no cost to the parties. The result would be more qualified mediators, offering both paid and free sessions, and more disputes resolved before a judge or commissioner has to decide them.
Counting hours is not measuring competence
Under Utah Code of Judicial Administration Rule 4-510.03, a new basic-roster applicant needs 40 hours of approved training, 10 hours of observed mediation, and 10 hours of co-mediation. Divorce mediators need an additional 32 hours of court-approved training specific to divorce mediation, including at least six hours on domestic violence and screening. They must also observe, co-mediate, and conduct divorce mediations with mentor debriefing. Roster mediators must agree to conduct at least three pro bono mediations a year.
Now consider a divorce lawyer with twenty years of negotiating settlements, evaluating evidence, sitting through mediations, and drafting agreements. That experience does not make the lawyer a competent neutral. It does, however, clearly count for something substantial, and the rule gives it little weight.
Applicants do take an ethics exam under Rule 4-510.03(2)(B). Beyond that, the rule mostly counts hours. A qualification system should find out what an applicant already knows, teach what is missing, and test whether the applicant can do the job. Prescribing the same coursework for everyone is an expensive substitute for that assessment.
Much of the job is skill lawyers already have
Much of domestic relations mediation is plain exchange. “Jane, you’ve heard John’s proposal. What is your response?” When talks stall: “Have you considered this alternative?” or “What if you split the difference?” Knowing when to ask, recognizing an unproductive exchange, and proposing a workable alternative take judgment. Experienced divorce lawyers use that judgment every day. They negotiate with angry people, explain unwelcome realities, identify tradeoffs, and draft settlements.
A mediator also does not need to heal the marriage or make the parties like each other. People can stay angry and still reach a sound agreement.
Some responsibilities do warrant focused instruction: neutrality, confidentiality, mediator ethics, and domestic violence screening. In divorce and child custody disputes, a mediator must recognize intimidation, judge whether participation is genuinely voluntary, and know when to add safeguards or end the session. A law license does not establish those abilities. But identifying real training needs does not show that every existing coursework and mentoring requirement is necessary. 72 hours? Really?
Utah should offer lawyers in good standing an abbreviated path: at least ten years of practice, including a defined number of contested domestic matters; a short course on ethics, neutrality, and screening; a skills-based examination; and an observed practical exercise. Applicants who fall short get targeted training in their gaps.
Reward voluntary service
Utah already recognizes that public service can earn CLE credit. Supreme Court Rules of Professional Practice Rule 1-619 awards one elective credit for five hours of pro bono legal services, capped at two credits per compliance cycle, with referral and oversight requirements. That sets the principle. It does not clearly cover free mediation, which is a neutral service rather than representation.
At five hours per credit with a two-credit cap, the incentive is too small to change anyone’s behavior. Create an express mediation credit instead:
- One elective CLE hour for each hour actually spent mediating an approved free session, up to—say, six?—credits per compliance cycle.
- Credit only for sessions scheduled through the court roster and verified by court staff, so the court, not the mediator, certifies the hours.
- Credit whether or not the parties settle, so mediators have no reason to push anyone into an agreement.
- Required ethics and professionalism hours stay untouched.
This credit is not a way around continuing education. Mediating teaches lawyers things. In my practice, I have never sat through a mediation without learning something I could use: how a position sounds when the other side hears it, what moves a stuck negotiation, which proposals people accept and which they reject. A lawyer who runs those sessions sees that repeatedly. Credit for it is defensible as education and sensible as an incentive. The cap and the verification requirement keep the credit from becoming a loophole. The incentive attaches to free sessions because free service is what the court is short of. What it buys is free, screened, court-connected mediation from qualified lawyers.
CLE incentives also have a ceiling. Once a lawyer uses up the available credit, the incentive weakens. So the proposal has two engines: credit encourages free service, and a streamlined qualification path enlarges the pool available for both free and paid mediation.
Free must not mean unserious
In my experience, people do not treat free services as seriously as paid ones, and they often treat the lawyers who provide them worse. A free mediation program that ignores this will produce no-shows, unprepared parties, and sessions used to preview the other side’s position. Free in cost cannot mean free of commitment.
The design should build in a stake for each party:
- Both parties confirm attendance independently. One party cannot book a session for the other, and a slot is not final until each has confirmed.
- A short intake and preparation form. It gets the parties ready, and it supports the domestic violence screening that has to happen before any session.
- Consequences for no-shows. A party who fails to appear without notice loses eligibility for another free session for a set period.
- A refundable deposit. Each party posts a modest deposit, returned when the party attends. It keeps access affordable and restores some of the commitment that a price creates. Fee waivers could cover parties who cannot post it.
- Court referral where appropriate. A session a commissioner or judge recommends carries the court’s weight.
- A limit on free sessions per case. Free mediation should not become a way to delay.
Make availability easy to find
Add a live availability calendar to the court roster. A qualified mediator posts an open Tuesday afternoon or Friday morning for a free session. Eligible parties pick a slot, subject to conflict checks, screening, and the confirmation steps above. Court staff could also make referrals.
First come, first served can govern suitable bookings. It cannot replace screening. The point is to turn a lawyer’s open afternoon into an accessible service without making everyone spend days looking for it.
Pilot it, and measure
The main public benefit is fewer contested proceedings. A mediation that settles a case may eliminate a trial. One that settles some issues may shorten a hearing, narrow the evidence, or avoid a motion. Those are real results even without a full settlement.
These are expected benefits, not proven savings from a program that does not exist. Administration would cost something, some mediations would accomplish little, and free sessions may perform worse than paid ones. So pilot it. Run the credit program alongside the current pro bono requirement, rather than replacing it at the outset. Measure availability, participation, no-show rates, agreements reached, issues narrowed, participant complaints, and court time, and compare free sessions with paid ones. If free availability holds up on its own, the mandatory quota is no longer needed. If it doesn’t, the court still has the quota.
The Judicial Council would need to revise the roster requirements. The Utah Supreme Court would need to authorize the CLE change, with the Bar and CLE administrators helping to implement it. That takes coordination, but the goal is practical: more competent mediation, offered with a stake for the parties, and a reason for capable lawyers to put their open time to work.
Utah should stop treating prescribed hours as the final word on competence. Teach the missing skills, test the results, and give capable lawyers a reason to put their available time to work.
Utah Family Law, LC | divorceutah.com | 801-466-9277