The way divorce mediation is conducted in Utah is wildly overrated, yet that fact is one of the best kept secrets in the family law legal profession.
To be clear, mediation as a process still has value, just not the kind most people believe it has. In Utah, parties are, unless excused, required to attempt mediation before proceeding to trial in divorce and child custody disputes.
Settlement discussions are usually useful. Compromise is typically preferable to prolonged litigation. But that does not mean mediators themselves are the reason cases settle.
When it comes to mediation, divorcing parties and their lawyers routinely confuse correlation with causation. A settlement happened during mediation; therefore (people assume), the mediator caused the settlement. Not really.
Most divorce and child custody disputes settle because the parties finally reach the point where settlement becomes preferable to continued litigation. Attorney’s fees accumulate. Discovery exposes weaknesses. Temporary orders create pressure. Trial approaches. Risks become clearer. Fatigue and reality set in.
In Utah, mediators do not and cannot make findings of fact, impose consequences for dishonesty, punish delay or gamesmanship, compel disclosure, issue rulings, or force reasonable behavior.
At most, many mediators manage emotional traffic and relay offers between rooms. Occasionally they may “reality check” a particularly unreasonable position. Sometimes that helps. Yet parties routinely pay thousands of dollars for what is essentially supervised indirect communication.
The problem becomes especially obvious in shuttle mediation, where the parties sit in separate rooms while the mediator walks back and forth carrying proposals, arguments, grievances, and selective summaries.
Shuttle mediation is deeply inefficient. It strips away tone, nuance, spontaneity, and ordinary human interaction. It encourages positional bargaining. It rewards dramatic presentations to the mediator instead of direct problem-solving. It allows parties to perform reasonableness privately while behaving unreasonably publicly. It creates opportunities for message distortion, intentional or not. It turns what could have been a four-hour negotiation into an eight-hour game of telephone.
Almost every experienced litigator has lived through this: the mediator spends forty-five minutes in one room listening to a monologue, walks into the other room, paraphrases it imperfectly, receives another monologue in response, then repeats the process for hours while the billing meter runs continuously.
Of course, there are situations where shuttle mediation makes sense. Protective orders. Legitimate domestic violence concerns. Severe intimidation dynamics. Parties who truly cannot communicate without chaos erupting. Some extraordinarily high-conflict cases. But those situations are exceptions, not the rule.
The broader problem is that mediation culture has become ritualized. Courts order mediation because that is what courts do. Lawyers schedule mediation because that is what lawyers do. Parties pay for mediation because refusing to do so may appear unreasonable. Then, when the parties eventually settle under the weight of mounting litigation pressure, everyone congratulates the mediator.
But most mediators do not resolve disputes. They supervise the moment when the parties themselves finally decide to compromise and settle. That is not the same thing as a mediator bringing settlement to fruition.
Other, better processes alter the parties’ understanding of risk and likely outcomes. They force reality into focus. They actually change incentives and tend to produce more meaningful movement.
And one of the simplest alternatives is also one of the most overlooked: have the parties and their attorneys sit down together and negotiate directly.
Not every divorce or child custody dispute needs a mediator acting as a paid go-between. In many cases, the people most capable of resolving the dispute are already in the room. The parties know the facts. The attorneys understand the law, the risks, the likely outcomes, and the weaknesses in each side’s position. Very often, they can negotiate productively without paying someone thousands of dollars to carry messages between conference rooms all day.
Direct settlement discussions are frequently more efficient than mediation. They allow real-time conversation instead of delayed relay communication. They reduce misunderstandings. They force positions to withstand immediate scrutiny instead of being selectively filtered through a third party. They also make it harder for people to posture performatively in private while pretending to be “reasonable” through a mediator.
Experienced divorce and family law attorneys already know this. Some of the most productive settlement discussions happen around conference tables without any mediator present at all. The parties and lawyers exchange information candidly, discuss risk honestly, identify practical solutions, and work toward settlement directly.
That approach is not appropriate in every case. Some cases genuinely require separation, structure, or security concerns that justify formal mediation. But those cases are not most cases.
Yet mediation has become so institutionalized in modern divorce practice that many parties never stop to ask the obvious question:
If the parties are ultimately going to settle the case themselves anyway, why not try sitting down together first before spending thousands of dollars paying a mediator to walk messages back and forth?
Utah Family Law, LC | divorceutah.com | 801-466-9277