What is Mediation and How to Prepare for It?

In many Utah family law cases, mediation is required before trial. Understanding what mediation involves, and how to prepare, can help you approach the process with confidence and clarity.

What is Mediation?

Mediation is an out-of-court process where a neutral third-party mediator facilitates negotiations between the parties to help them reach voluntary agreements regarding their case. Whether court-ordered or independently scheduled, the parties to the case hold the decision-making power throughout the entire process.

Unlike judges and arbitrators, mediators do not consider evidence, evaluate legal arguments, or make any kind of decision. Rather their entire purpose is to encourage the parties to come to a voluntary agreement and resolve as many issues as possible outside of litigation. Thus, mediation is often the last opportunity for the parties to come to some type of agreement on their own before surrendering that decision making power to the courts.

In the event the parties reach an agreement, the agreement’s terms are then drafted into a writing that that the parties sign prior to being submitted to the courts. Once the agreement signed by a judge it becomes legally binding on the parties.

Does Mediation Create a Win-Win Outcome?

A seasoned mediator once told me, "No one wins in mediation." While the goal of mediation is to help the parties reach a mutually acceptable agreement, it is uncommon for both parties to walk away with everything they wanted. Instead, mediation often requires both parties to compromise by giving up something that is less important to them to preserve something that matters more.

In that sense, mediation may not feel like a “win-win” situation. But that does not mean that both parties must lose. A successful mediation can allow each party to prioritize the issues that matter most to them while finding reasonable compromises on the issues that are not as important. The goal is not necessarily to get everything you want; it is to reach an agreement that you can both accept rather than leaving every disputed issue for a judge to decide for you.

Why Should I Prepare for Mediation?

Considering how mediation requires compromise, why would anyone want to mediate? The answer is simple: control. In mediation, the parties retain the authority for resolving their dispute and can negotiate an outcome that addresses the issues that matter most to them.

If mediation is unsuccessful and the case proceeds to trial, the disputed issues will be decided by the court. For many people, having a stronger say in the outcome is one of the most valuable benefits of mediation.

How to Prepare for Mediation

1. Identify your priorities.

One of the best things you can do once mediation is scheduled is review your case and identify which issues or outcomes are most important to you. It may be helpful to narrow your list to three to five priorities. These priorities represent the issues that matter most to you and should receive particular attention during the negotiation process.

Identifying your priorities ahead of time can also help you distinguish between what you want and what you are willing to compromise on. You may ultimately decide that some issues are important enough that you would rather have a judge decide on them rather than agree to terms you cannot accept. Knowing your priorities before mediation can help you make thoughtful decisions during the negotiation process rather than making important decisions in the moment.

2.  Review your negotiation tools.

Once you have identified your priorities, the next step is to identify the areas where you are willing to compromise. These areas become your negotiation tools, which you can use to work with the other party to reach a satisfactory agreement.

For example, during a divorce mediation session, you might agree to miss out on certain holidays on the parent-time schedule in exchange for other holidays that are more important to you. You might likewise be willing to give up a second car in exchange for your favorite fishing boat. Understanding your negotiation tools beforehand can also help you make thought out decisions during mediation rather than feeling pressured to make concessions in the moment.

3.  Come up with a mediation plan.

Before mediation begins, it can be helpful to prepare a proposed settlement that addresses the issues in your case and reflects your priorities. Having a proposal ready at the onset of mediation gives you a solid starting point for the negotiations.

As you participate in mediation, consider how you can use the above negotiation tools to address the other party's priorities while still protecting the issues that matter most to you. A good mediation plan is not about predicting exactly how the day will unfold. Instead, it is about knowing what you want to accomplish, understanding where you are willing to compromise, and being prepared to adjust your proposal as new options arise.

4. Know your BATNA.

When participating in mediation, it is important to understand what happens if you and the other party cannot reach an agreement. In negotiation terminology, this concept is called your “BATNA,” or Best Alternative to a Negotiated Agreement. In a domestic case, your BATNA will likely mean continuing toward trial and allowing the court to decide the disputed issues.

Understanding your alternatives outcomes can help you evaluate settlement proposals realistically and avoid agreeing to something simply because you felt pressured to settle. Knowing what you will do if mediation fails can help you determine when a proposed agreement is acceptable and when it may be better to end the mediation and allow the court to decide.

Takeaway

Mediation can be intimidating, but preparation can make the process more manageable. By identifying your priorities, knowing where you are willing to compromise, and having a plan in advanced, you can enter mediation prepared to make informed decisions and have a meaningful voice in the outcome.

If you have any questions about this article or any other related family law issue, please contact the Law Office of J. Peter Jones and schedule a free consultation.