Mediation saves families money

Posted on April 8, 2009 by comm5775

by TYLER COBB

Going to court for a divorce can be stressful, both monetarily and emotionally. In Utah couples are required to sit down with a mediator to work through their problems in an attempt to avoid a court trial and a hefty legal bill.

The State of Utah began requiring mediation in 2005 to help people avoid going to court by talking with a neutral mediator, trained in how to handle family conflicts and how to navigate the law.

Stewart Ralphs, executive director of the Legal Aid Society of Salt Lake, said hundreds of low-income families need legal advice and most lawyers do pro bono work to keep costs low. But it costs even less when couples can solve problems through a mediator.

“We’re trained in law school to be very zealous advocates for our clients and go to the mat and take these cases to trial and bring in all the evidence and win, win, win,” Ralphs said. “Mediation is just the opposite – it’s trying to come up with a resolution for everybody as a winner.”

Ralphs said the organization generally works with mediators from Utah Dispute Resolution, a nonprofit mediation organization where most mediators work as volunteers to keep costs low for struggling families.

If the parties can resolve their dispute using mediation it’s much cheaper than going to trial, and there is a fairly high rate of resolution. “It can vary between 60 to 75 percent of the time, which is certainly cheaper than going through the whole trial process,” Ralphs said.

Mediators spend hours negotiating with both parties to reach a fair conclusion, but they have to remain neutral despite what is said.

The courts require that mediators spend at least 40 hours in training, which they can receive at the dispute resolution center. Nancy McGahey, executive director of the center, said most mediators the center hires are well-trained and have certain skills and personality traits that help them work with couples.

“People in dispute need time. As a mediator you need to sit with people and be comfortable with people who are emotional,” McGahey said. “It’s also important to know oneself and be aware of your own internal biases, especially when you’re starting to lose neutrality.”

At the Legal Aid Society, attorneys rely “very heavily” on mediation to avoid court dispute, Ralphs said. Going to court can increase costs for all families. Ralphs said the organization charges anywhere from $200 to $600 for family-law cases, just for lawyer and court costs. However, there are other expenses depending on the results of the court and how long it drags out.

“You come up with an agreement that people are actually going to implement and make work,” Ralphs said. “These are people that have got to live the rest of their lives together. They have kids together. They have property together, and they can usually come up with a better solution than a judge can in a one- or two-day trial.”

Many women and/or men who come to the Legal Aid Society for a family-law case have multiple factors they need to consider and resolve, especially those seeking a divorce. The couple will have to review childcare, health care, child support, property resolution and other issues.

The Legal Aid Society sees so many family-law cases that they usually request mediators trained specifically for family law.

McGahey said family-law mediators need additional training beyond most mediators.

“They’re more experienced and have more training,” McGahey said. “To be approved on the court roster, a domestic mediator needs 20 hours of practical experience, an ethics exam, a criminal background check and in addition, the person needs a minimum of 32 hours domestic training and a formal mentorship, which involves six mediation sessions at a minimum.”

With a good mediator, a session can be successful and help couples find a solution.

Some women requesting legal help come from an abusive or closed relationship and sometimes need to say what they’re feeling, Ralphs said. A mediator can provide an atmosphere to work through problems without arguing or yelling.

If mediation or negotiation doesn’t work, attorneys will start preparing to take the case to court. “The custody battle follows,” Ralphs said.

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Mediation: Making the best out of a bad situation

Posted on April 2, 2009 by comm5775

by JED LAYTON

Attorney Stewart Ralphs doesn’t always want to win his cases.

Instead, he wants the best possible outcome for all people involved in the desperately bad situation of divorce.

Ralphs, executive director of the Legal Aid Society of Salt Lake (LAS), said many divorce cases his agency deals with are handled outside of the courtroom. LAS also assists people in the middle of domestic violence cases.

“We rely on mediation,” he said, explaining that mediation involves a neutral third party to give suggestions and help the discussion proceed.

“Mediation is trying to come up with a resolution where everyone is a winner,” he said.

LAS uses mediation for many reasons, Ralphs said. First, it is cheaper. LAS helps clients with limited or no income. The nonprofit organization receives money through donations, small amounts of government funding and minimal client fees. But the agency often has to turn people away because of a tight budget.

Using mediation allows LAS to help more people than it would by going to court, which is often a long and expensive process.

David Mussleman, owner and founder of Common Ground Divorce Mediation, said mediators typically charge more per hour than attorneys do. But because the process is expedited clients spend 10 percent of what they would have with an attorney.

“Actually the number is 20 times less the expense because it includes both sides,” Mussleman said.

Ralphs said mediation is also used by LAS because the process allows its clients to actively participate in the decision making process.

Ralphs said this is a unique experience for many people, especially for women. He said mediation is sometimes the first time a person has had the opportunity to have his or her opinion heard or decisions implemented.

Mediation allows the clients to suggest solutions, while getting advice and legal council from an attorney at the same time.

“It works best for us if you have both parties represented by attorneys at mediation because the client isn’t trying to make decisions without the benefit of advice and legal council,” Ralphs said.

This format helps create a positive environment between the opposing parties, whereas a court battle can leave the two parties angry, frustrated and non-cooperative.

Mussleman said the biggest benefit mediation provides is the ability it has to salvage what is left of a broken relationship.

“This is especially important if the two have children,” Mussleman said. “Divorced parents need to understand they will have to continue to interact with each other if they want to be involved with their kids. They might as well make it as friendly as possible.”

Mediation success in both the public and private sector has risen in the last decade. Nearly five years ago the Utah State Legislature enacted a law requiring all family law cases to attempt mediation.

Ralphs said most cases are settled in mediation, lawyer-to-lawyer negotiation or pre-trial agreements. He estimated only 1 percent to 2 percent of cases actually go to court.

Both Ralphs and Mussleman said the introduction of mediation has changed the way family law is now practiced.

Ralphs said lawyers trained before the idea of mediation, including himself, were taught to be very aggressive and to always take cases to court.

“Mediation is just the opposite,” Ralphs said. “It is trying to come up with a resolution where everyone is a winner.”

James Holbrook, a professor at the University of Utah’s S.J. Quinney College of Law, teaches mediation courses and has seen the changes in how family law is taught.

He said 30 years ago mediation philosophy was basically unheard of, but was slowly introduced in the late 1980s and early 1990s.

In time the program developed into classes that teach mediation theory and encourage law students to practice and develop skills in working with mediators and coming up with mediation solutions themselves.

Mussleman, who is not a lawyer, said more people are using mediation without lawyers because of the expense and better-trained mediators. Most mediators, while not attorneys, are trained in law and negotiation.

“There is definitely a sway in the mindset of how people are approaching conflict, especially in family law,” he said. “I foresee five years from now, 95 percent of all divorce cases not involving attorneys at all.”

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