Don’t get me wrong. I’m all for mediation. (I am a Master Mediator and Mentor on the Utah Court’s roster and have been a mediator more years than I have practiced law.) Mediation is often presented as a faster, less expensive alternative to litigation, and in many cases, it can be. In Utah family law matters, courts routinely require parties to attempt mediation before proceeding further in a divorce or custody case. (See Utah Code Ann. 81-4-403) The intent is to reduce conflict, encourage early resolution, and limit the burden on the court system. However, what sounds efficient in theory does not always translate into effective results in practice.

For individuals navigating divorce or custody disputes, working with an experienced Utah divorce lawyer is critical to understanding when mediation is likely to be productive and when it is simply another procedural step that adds cost and delay. If you are facing divorce in Utah County, you can also review our Lehi divorce lawyer and child custody attorney page and our American Fork divorce lawyer and child custody attorney resource for more guidance.

See also: Mandatory Mediation – Good Faith Participation and Enforceability

What Mediation Is Supposed to Be

Voluntary Resolution and Party Control

Mediation was originally designed as a voluntary process. When both parties are willing to participate and have enough information to evaluate their positions, they can often resolve disputes more efficiently than through litigation. Mediation allows parties to retain control over the outcome, reduce legal costs, and create more flexible agreements than a court might impose.

Historically, mediation has been highly effective under these conditions. The key factor is not simply the process itself, but the voluntary willingness of the parties to engage in it meaningfully and at the right time.

The Problem with Mandatory Mediation in Utah

When Participation Is Forced Instead of Strategic

In many Utah divorce and custody cases, mediation is not voluntary – but mandatory (See Utah Code Ann. 81-4-403). Courts frequently require mediation early in the litigation process, sometimes shortly after the initial pleadings are filed. By that point, the parties have already taken adversarial positions, retained counsel, and committed to pursuing their claims through the legal system.

Requiring mediation at this stage attempts to force resolution before the case is ready. Instead of encouraging productive negotiation, it often results in parties attending mediation without the ability to meaningfully settle their dispute – or worse they view the mandatory attendance as nothing more than a ‘checkbox’ to get the case to the next stage of litigation.

The Timing Problem: Why Early Mediation Fails

The “Unripe Fruit” Reality

One of the most significant issues with mandatory mediation is timing. Effective mediation depends on having sufficient information to make informed decisions. Early in a case, that information is rarely available (well, maybe not readily accessible by one side or the other). Financial disclosures may be incomplete, assets and debts may not be fully identified, and key facts—especially in child custody cases—may still be unclear or disputed. (ie, a custody evaluator’s has not yet had ample time to prepare a report.)

Without this foundational information, parties are left negotiating based on assumptions rather than facts. This creates a situation where mediation is structurally incapable of producing meaningful resolution. Further, without the missing information, any settlement may be incomplete, or left without verbose language due to insufficient information to address the core issues.

Forcing mediation under these conditions is like picking unripe fruit. The case has not developed enough to support settlement, and the process is unlikely to succeed.

Mediation Without Information Leads to Failed Outcomes

Guesswork, Imbalance, and Distrust

When mediation occurs before discovery has taken place, parties are often negotiating in the dark. One party may have access to more financial or factual information, while the other is forced to estimate or rely on incomplete disclosures. This imbalance leads to hesitation, mistrust, and entrenched positions.

Rather than facilitating agreement, early mediation frequently reinforces conflict. Parties become more rigid in their positions, making later resolution more difficult.

How Mediation Has Changed in Practice

From Dialogue to Shuttle Negotiation

Mediation today often looks very different from what it was originally intended to be. Instead of collaborative discussion, parties are frequently separated at the outset, with the mediator moving between rooms. Attorneys control communication, and the process becomes focused on negotiation strategy rather than dialogue. If you watch any ‘classic’ (read that to mean videos that are 20 or more year old) youtube videos on mediation you will see the process included a mediator gathering information before the mediation, the parties starting mediation together to identify the issues to be resolved, a brief introduction spiel by the mediator with ground rules, and initiating the mediation with the parties discussing the issues. Caucuses were reserved for shuttling when there was an impass.

In many cases, what is labeled as mediation is more accurately described as a structured settlement conference or forced negotiation process.

The Hidden Costs of Early Mandatory Mediation

More Expense, More Delay, Less Resolution

Although mediation is often promoted as a cost-saving tool, requiring it too early can produce the opposite result. Parties incur mediation fees and attorney costs preparing for a session that is unlikely to succeed. When mediation fails, the case continues, and those costs are effectively duplicated.

This pattern is common. Mediation is ordered early, fails due to lack of information, and the case proceeds through discovery. Only later—once the facts are clear—does settlement become possible. (And, in some cases, the court may order the parties back to mediation.)

If your case involves financial complexity, understanding how courts handle division is essential before attempting settlement. Review our guide on how property and debt are divided in Saratoga Springs divorce cases.

When Mediation Actually Works

The Importance of Preparation and Timing

Mediation is most effective when both parties have a clear understanding of the case. This typically occurs after financial disclosures have been exchanged, assets have been identified, and each party understands their legal position – weighing the costs of trial against the possibilities of settlement through party control (mediation).

At that point, mediation becomes a powerful tool for resolving disputes involving custody, support, and property division. For additional insight, see our article on child custody and parenting plans in Lehi.

Mediation vs. Litigation: Choosing the Right Path

You Are Not Required to Settle

There is nothing improper about pursuing litigation. The court system exists to resolve disputes when parties cannot reach agreement. Mediation should be a strategic option used at the appropriate time—not a procedural obstacle that forces premature settlement discussions.

If your case involves significant assets or complex financial issues, working with an experienced high asset divorce lawyer in American Fork can help ensure your interests are fully protected.

A Better Approach to Mediation in Utah Divorce Cases

Use Mediation Strategically, Not Prematurely

The most effective use of mediation is not to avoid it, but to time it correctly. This means allowing the case to develop, ensuring both parties have access to necessary information, and entering mediation with a clear understanding of the issues.

When mediation is used at the right stage, it can reduce conflict, shorten the case, and lead to better outcomes. When forced too early, it often increases cost and delay without meaningful benefit.

Talk to a Utah Divorce Lawyer About Your Mediation Strategy

Every case is different, and mediation strategy should be tailored to your situation. At Rifleman Law & Mediation, we help clients throughout Utah County develop effective case strategies that protect their interests and avoid unnecessary expense.

Learn more about how we approach divorce and mediation cases by visiting our Saratoga Springs divorce lawyer and child custody attorney page.

Final Thoughts

Mediation remains one of the most valuable tools in family law when it is used correctly. It works best when it is voluntary, informed, and timed appropriately within the litigation process.

When mediation is required too early—before the facts are known and before the parties are prepared—it becomes something very different. Instead of facilitating resolution, it becomes an additional step that adds cost, delay, and frustration.

Understanding that distinction can save you time, money, and unnecessary conflict.

Related Utah Divorce and Mediation Articles

• How Divorce Works in Lehi, Utah
• What Does Divorce Cost in Lehi?
• Divorce Mediation vs Litigation in Lehi, Utah
• Divorce Mediation in American Fork, Utah
• Divorce Enforcement and Modifications in American Fork
• Temporary Orders in Saratoga Springs Divorce Cases
• Mediation – Good Faith Participation and Enforceability

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Mediation is often most effective when the parties arrive prepared. Many people assume mediation is simply a meeting where everyone shows up and starts talking. In reality, productive mediation requires strategy, information, and a realistic understanding of the disputed issues. Preparation can determine whether mediation produces settlement, narrows issues, or turns into an expensive stalemate.

If you are heading into divorce mediation in Utah, preparation should begin well before the mediation date. That means identifying your priorities, understanding the legal framework, gathering the necessary records, and thinking through what terms actually work in day-to-day life.

Families often begin by reviewing local pages such as divorce mediation in Saratoga Springs, divorce mediation in Lehi, or divorce mediation in Eagle Mountain. The broader service areas page for Utah family law representation is also helpful for readers searching by community.

Know What Issues Are Actually Being Mediated

Mediation works best when everyone understands the disputed issues. Some cases center on custody. Others center on alimony, property division, or implementation details. Some involve multiple issues at once. If you do not identify the issues clearly before the session, the discussion can drift and lose momentum.

List the actual disputed topics

Make a written list of what remains unresolved. That may include legal custody, parent-time schedules, child support, alimony duration, real estate equity, debt allocation, or who keeps specific accounts or vehicles.

Separate priorities from preferences

Not every desired term carries the same importance. Knowing which issues are essential and which issues are negotiable helps you avoid giving away something important just to feel progress during the session.

Bring the Financial Records That Matter

If mediation involves support or property issues, financial preparation is critical. A mediation session cannot resolve disputed account values or reimbursement claims effectively if the parties lack the underlying records.

Useful documents to gather

Bring recent paystubs, tax returns, bank statements, retirement statements, mortgage balances, credit card summaries, and any available valuations for real property or business interests. If one side is making a separate-property claim, the tracing documents should also be gathered.

Support discussions need numbers

Questions involving alimony, child support, and property division require real numbers. Mediation based on rough assumptions often leads to avoidable delay or weak settlement drafting.

Understand the Legal Framework Before You Negotiate

Mediation is not just about compromise. It is about informed compromise. A party who does not understand the governing legal standards is more likely to make bad decisions or reject reasonable proposals for the wrong reasons.

Know how the court would likely analyze the issues

If the dispute involves custody, review Utah custody and parent-time law and the article on how Utah courts apply the best interests standard. If the dispute involves alimony, review how Utah courts decide alimony. If the issue involves the overall divorce process, review Utah’s divorce process.

Use the law to inform settlement, not replace it

A mediated result does not have to mirror the exact result a court might impose, but it should be evaluated against that backdrop. That is what allows you to measure risk realistically.

Prepare a Proposed Parenting Schedule If Children Are Involved

Where children are involved, arriving without a concrete schedule proposal is a mistake. A general statement that you want “more time” or “equal time” is not enough. You should bring a proposed structure that addresses weekdays, weekends, holidays, transportation, and communication.

Think about school, work, and travel

A parenting schedule should fit the actual geography and obligations of the family. For example, exchange logistics for a family centered in Saratoga Springs or Eagle Mountain may differ from those for a family centered in Bluffdale or Riverton.

Parenting plans should be detailed

Parents should also review your article on what parents should address early in Utah parenting plans.

Think in Terms of Terms, Not Just Outcomes

People often enter mediation focused only on headline outcomes: who keeps the house, whether alimony is paid, or how many overnights each parent has. But the practical terms around those outcomes are just as important.

Implementation details matter

If one spouse keeps the home, when must refinancing occur? What if refinancing is denied? If a retirement account is split, who prepares the order? If a parent-time exchange occurs after school, what happens on non-school days?

Specific drafting prevents future disputes

Good mediation is not just about reaching agreement in principle. It is about creating terms that can actually be enforced and followed later.

Be Realistic About Your Leverage and Risks

Mediation often fails because one or both parties arrive with unrealistic assumptions about what a judge is likely to do. A useful mediation position is one informed by facts, law, and risk analysis—not just frustration or wishful thinking.

Ask what happens if the case does not settle

What further costs will you incur? What evidence still needs to be gathered? What motions are likely? How long until trial? Settlement analysis becomes more rational when viewed against actual litigation exposure.

Do not negotiate from anger

Family cases are emotionally difficult, but anger is not a substitute for strategy. Clients generally do better when they focus on durable outcomes rather than symbolic wins.

Mediation Can Also Be Useful in Post-Decree Cases

Mediation is not limited to initial divorce cases. It can also help resolve disputes over decree modification and enforcement of orders.

Modification disputes

Changes in income, work schedules, parenting logistics, or children’s needs can make mediation a useful tool for reshaping prior arrangements without full-blown litigation.

Enforcement disputes

Parties may also use mediation to work through implementation problems, arrearages, missed transfers, exchange logistics, or compliance deadlines. Local readers may find pages such as modification cases in Orem, enforcement proceedings in Provo, and family law mediation in Herriman helpful.

Review Existing Mediation Resources Before the Session

If you are preparing for mediation, take advantage of the information already available on your lawyer’s site. Reviewing the process in advance makes the session more efficient and less intimidating.

Recommended related reading

Start with what to expect in divorce mediation, review good-faith participation and enforceability in mediation, and consider the broader Utah mediation practice page.

Conclusion

Divorce mediation in Utah is usually most successful when it is approached as a structured settlement process rather than an improvised conversation. The more prepared you are with the facts, the records, the legal framework, and a realistic proposal, the more productive the session is likely to be.

If you want help preparing for a Utah divorce mediation session, you can schedule a free consultation with Rifleman Law & Mediation or contact the office directly.

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Divorce litigation can be expensive, time-consuming, and emotionally exhausting. Many people enter the divorce process assuming that the only path forward is through court hearings, motions, and eventually a trial. In reality, many family law disputes in Utah are resolved through negotiation and mediation long before a judge ever decides the outcome. Mediation allows spouses to address the most important issues in their divorce—such as custody, parent-time, property division, alimony, and child support—through a structured negotiation process rather than a contested courtroom battle.

Individuals exploring divorce mediation in Utah often discover that mediation offers something traditional litigation rarely does: meaningful control over the final outcome. When a judge decides a case after trial, the court must apply statutory factors and limited evidence presented during the hearing. In mediation, however, the parties can consider the full context of their lives, finances, parenting responsibilities, and long-term goals.

For families in northern Utah County communities such as Saratoga Springs, Lehi, and Eagle Mountain, mediation often becomes a practical way to resolve disputes while minimizing disruption to the family. You can also review the broader Utah family law service areas page to see the communities served by Rifleman Law & Mediation.

Why Mediation Often Resolves Divorce Disputes More Efficiently

One of the most immediate advantages of mediation is efficiency. Court systems operate on fixed calendars and often carry heavy caseloads. Even relatively simple motions can take weeks or months to schedule. If a case proceeds to trial, the timeline can extend even longer depending on the complexity of the dispute and the availability of the court.

Mediation sessions can usually be scheduled much sooner

Unlike court hearings, mediation sessions are scheduled privately between the parties and the mediator. This flexibility often allows mediation to occur within weeks rather than months. In cases where the parties are motivated to resolve disputes quickly—such as when financial uncertainty or parenting conflicts are ongoing—this faster timeline can significantly reduce stress and uncertainty.

For example, disputes involving custody and parent-time arrangements often require prompt attention because children’s schedules, schooling, and daily routines are directly affected. Mediation can allow parents to work through these concerns quickly instead of waiting for the court’s next available hearing.

Multiple legal issues can be addressed in a single session

Another reason mediation can be more efficient is that it allows the parties to address multiple issues at once. Court hearings typically focus on one motion or legal issue at a time. In contrast, mediation sessions often allow the parties to negotiate a full settlement covering property division, parenting schedules, support obligations, and implementation details.

This broader approach can help resolve disputes involving marital property division, alimony determinations, and child support obligations simultaneously rather than through multiple separate court proceedings.

Mediation Allows the Parties to Maintain Greater Control

When a divorce case goes to trial, the ultimate decision rests with the judge. Even experienced attorneys cannot guarantee how a judge will interpret evidence or apply the statutory factors that govern family law decisions. Mediation changes this dynamic by allowing the parties themselves to shape the outcome of their case.

Creative settlement options become possible

Courts must apply legal rules and standard frameworks when issuing orders. Mediation allows for more creative problem solving. For example, spouses may negotiate flexible property arrangements, structured buyouts of marital assets, or phased parenting schedules that gradually transition children into new living arrangements.

In high-asset divorces involving retirement accounts, real estate, or business interests, parties may also explore structured property settlements rather than immediate liquidation of assets. Individuals facing complex financial questions may benefit from reviewing the firm’s resources on Utah property division and related family law issues.

Parents can design parenting schedules tailored to their family

For parents, one of the most significant advantages of mediation is the opportunity to design parenting schedules that reflect the realities of their children’s lives. A courtroom may not be the ideal environment for developing detailed parenting plans. Judges often rely on standard frameworks, but families may require more nuanced arrangements.

Through mediation, parents can work through issues such as school transportation, extracurricular activities, communication expectations, holiday schedules, and summer arrangements. These detailed agreements can reduce future conflict and create a clearer structure for co-parenting after the divorce.

Parents involved in custody disputes may also wish to review how Utah courts evaluate the best interests of the child when determining custody and parenting arrangements.

Mediation Can Significantly Reduce Legal Costs

Divorce litigation often becomes expensive because each contested issue requires attorney preparation, legal research, document drafting, and court appearances. When disputes escalate into repeated motions or trial preparation, those costs can increase quickly.

Resolving disputes earlier reduces litigation expenses

When mediation leads to settlement, the parties often avoid the substantial costs associated with trial preparation and evidentiary hearings. Even partial settlements—where some issues are resolved and others remain contested—can narrow the scope of litigation and reduce overall legal fees.

This financial efficiency is particularly valuable in cases where marital assets must ultimately be divided between the parties. Reducing litigation costs preserves more of the marital estate rather than diverting funds into extended legal disputes.

Clear agreements reduce the likelihood of future disputes

Another benefit of mediation is that carefully negotiated agreements can reduce the likelihood of future litigation. Many post-divorce disputes arise from unclear language in divorce decrees or incomplete settlement terms. Mediation allows the parties to address implementation details directly, which can prevent later conflicts.

For example, disputes over missed payments, reimbursements, or compliance with court orders sometimes lead to enforcement proceedings. A well-structured mediated agreement can significantly reduce the risk of those problems.

Mediation Is Valuable in Both Divorce and Post-Decree Cases

Although mediation is commonly associated with the initial divorce process, it can also be extremely helpful in post-divorce disputes. Life circumstances change over time, and many families return to court seeking modifications of custody, parent-time, or support orders.

Modification disputes can often be resolved through mediation

Changes in employment, relocation, or a child’s evolving needs may require adjustments to existing court orders. Rather than immediately pursuing contested litigation, many families attempt mediation first. This approach can allow the parties to develop updated parenting plans or support arrangements that reflect their current circumstances.

Individuals facing modification disputes may wish to review resources regarding Utah divorce decree modification as well as city-specific guidance such as Provo divorce modification cases or divorce modification matters in Orem.

Mediation can resolve enforcement disputes as well

Even when a court order already exists, disagreements about compliance sometimes arise. These disputes may involve missed payments, delayed property transfers, or disagreements about parenting schedules. Mediation can provide an opportunity to resolve those conflicts before initiating formal enforcement litigation.

For example, families in communities such as Riverton or Bluffdale may find mediation helpful in resolving enforcement disputes efficiently and avoiding additional court proceedings.

Preparation Is Essential for Effective Mediation

Although mediation is less formal than courtroom litigation, it still requires preparation. Successful mediation sessions typically involve careful review of financial information, parenting proposals, and legal issues before the parties meet with the mediator.

Financial disclosure is critical

If financial issues are part of the dispute, both parties should come prepared with accurate information regarding income, assets, debts, and expenses. Documents such as tax returns, bank statements, retirement account records, and mortgage statements often play a central role in productive mediation discussions.

Without reliable financial data, it can be difficult to negotiate issues such as spousal support or child support obligations.

Parenting proposals should be clearly defined

Parents who enter mediation with detailed parenting proposals are often able to reach more effective agreements. Rather than relying on general statements about custody preferences, parents should consider weekday schedules, holiday rotations, school transportation, and communication protocols in advance.

Individuals preparing for mediation may find it helpful to review what to expect during a divorce mediation session before attending their first mediation conference.

Mediation Can Lead to More Durable Agreements

Another advantage of mediation is that agreements reached through negotiation often prove more durable than orders imposed through litigation. When both parties participate actively in shaping the settlement, they may be more likely to comply with the terms and maintain a cooperative approach moving forward.

Detailed agreements reduce ambiguity

Mediated settlements often include detailed provisions regarding parenting schedules, financial obligations, and property transfers. This level of specificity can reduce misunderstandings and provide clearer expectations for both parties.

Collaborative problem solving supports long-term co-parenting

Where children are involved, the parties will often continue interacting long after the divorce is finalized. Mediation can provide a more constructive environment for establishing communication patterns that support long-term co-parenting relationships.

When Mediation May Not Be Appropriate

Despite its advantages, mediation is not suitable for every family law case. Situations involving serious domestic violence, coercive control, or a refusal to provide basic financial disclosure may require a more formal litigation process.

Power imbalances must be addressed carefully

Effective mediation requires that both parties feel able to participate in the negotiation process. When significant power imbalances exist, additional safeguards or alternative dispute resolution methods may be necessary.

Full financial transparency is essential

Negotiation cannot succeed if one party is concealing assets or refusing to provide required financial information. In such cases, formal discovery procedures may be necessary before meaningful settlement discussions can occur.

Conclusion

Mediation frequently resolves divorce and family law disputes faster, with less cost and less emotional strain than traditional litigation. By allowing the parties to negotiate practical solutions tailored to their circumstances, mediation can produce agreements that are both effective and sustainable.

If you would like to learn more about Utah divorce mediation services, review the firm’s broader family law mediation practice, or schedule a consultation with Rifleman Law & Mediation. You may also contact the office directly to discuss your situation and explore whether mediation may be an appropriate option for your case.

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Divorce mediation is one of the most effective ways to resolve a divorce in American Fork, Utah without prolonged litigation. While Utah courts typically require mediation before trial, how mediation is approached will determine whether it actually resolves the case or simply delays it.

This guide explains how divorce mediation works in American Fork, when it is effective, when it fails, and how to use it strategically to reach enforceable agreements. For a broader overview of your options, visit our American Fork divorce lawyer and child custody attorney hub page.

What Is Divorce Mediation?

Mediation is a structured negotiation process facilitated by a neutral third party (the mediator). The mediator does not make decisions but helps the parties work toward a voluntary agreement on issues such as custody, parent-time, support, property division, and alimony.

Unlike litigation, mediation allows both parties to maintain control over the outcome. However, successful mediation requires preparation, strategy, and a clear understanding of legal rights and obligations.

To understand where mediation fits within the broader process, see how divorce works in American Fork, Utah.

When Mediation Works Best

Mediation is most effective when both parties are willing to engage in good-faith negotiation and have sufficient information to make informed decisions. It works particularly well in cases involving:

• Relatively balanced financial knowledge between the parties
• Willingness to compromise on non-essential issues
• A shared interest in reducing cost and conflict
• Custody arrangements that can be tailored collaboratively

Custody and parenting plan issues are often well-suited for mediation because they benefit from customized solutions. For more on those issues, see child custody and parenting plans in American Fork.

When Mediation Fails

Mediation is not always successful. Common reasons mediation fails include:

• Lack of financial transparency or incomplete disclosures
• Unrealistic expectations by one or both parties
• High-conflict dynamics or refusal to compromise
• Power imbalances that prevent meaningful negotiation

In these situations, mediation may still clarify the issues but will not resolve the case. The matter may then proceed toward litigation.

When disputes escalate, costs increase significantly. For more on that, see what does divorce cost in American Fork, Utah.

What Happens During Mediation

Mediation sessions typically involve both parties, their attorneys (if represented), and the mediator. The process may occur in a single session or multiple sessions depending on the complexity of the case.

Issues addressed in mediation commonly include:

• Child custody and parent-time
• Child support (see American Fork child support attorney)
• Division of property and debt
• Alimony (see American Fork alimony lawyer)

Many mediations use a caucus format, where the mediator meets separately with each party to facilitate negotiation and manage conflict.

Cost Benefits of Mediation

Mediation is generally far less expensive than litigation. By resolving issues outside of court, parties can avoid extensive discovery, motion practice, and trial preparation.

However, the cost savings depend on how mediation is used. Effective preparation increases the likelihood of resolution, while poorly prepared mediation often leads to additional sessions and higher overall cost.

For a full breakdown of divorce costs, see what does divorce cost in American Fork, Utah.

Turning Mediation Agreements Into Enforceable Orders

When mediation is successful, the parties will typically sign a written agreement (often called a stipulation). That agreement must then be submitted to the court and incorporated into the final Decree of Divorce.

If the agreement is not properly drafted or fails to address key issues, it can create enforcement problems later. Precision and completeness are essential.

If a party later violates the agreement, enforcement may be required. Learn more at American Fork divorce enforcement lawyer.

Mediation vs Litigation: Strategic Considerations

Mediation is not about giving up rights—it is about controlling outcomes. Litigation, by contrast, places decision-making authority in the hands of the court.

The choice is not always binary. Many cases involve a combination of negotiation and litigation pressure. Strategic use of mediation can often produce better, faster, and more cost-effective results than trial.

Understanding the broader litigation process helps inform mediation strategy. See how divorce works in American Fork, Utah.

Mediation and High-Asset or Complex Cases

Mediation can still be effective in high-asset or complex cases, but it requires thorough financial analysis and preparation. Without accurate financial data, meaningful negotiation is not possible.

If your case involves significant assets, review American Fork high asset divorce lawyer.

Using Mediation Effectively in American Fork

Mediation is most effective when approached as a strategic process rather than a procedural requirement. Preparation, documentation, and clarity of objectives are critical.

If you are considering mediation or have been ordered to mediate, you can begin by reviewing our American Fork divorce mediation lawyer page or our American Fork divorce lawyer and child custody attorney hub page to better understand your options.

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When facing divorce in Lehi, one of the most important decisions is how your case will be resolved. Most divorces are handled either through mediation or litigation, and the path you choose can significantly affect cost, timeline, and outcome.

Understanding the differences between these approaches can help you make informed decisions. If you need guidance, working with an experienced divorce lawyer in Lehi can help you determine the most effective strategy for your situation.

What Is Divorce Mediation?

Mediation is a process where both parties work with a neutral third party (the mediator) to resolve disputes outside of court. In Utah, mediation is typically required before a case can proceed to trial.

During mediation, the parties negotiate issues such as custody, support, alimony, and property division. The goal is to reach a mutually acceptable agreement without the need for a contested hearing.

Mediation is often used after the initial stages of the case, including filing and disclosures. If you are unfamiliar with the overall process, see our guide on
how divorce works in Lehi.

What Is Divorce Litigation?

Litigation occurs when the parties are unable to reach agreement and must ask the court to decide unresolved issues. This involves formal motion practice, hearings, and potentially a trial before a judge.

In Utah County, many contested issues are first heard by a court commissioner, who makes recommendations to the judge. If necessary, those recommendations can be challenged through objection procedures.

Litigation is often necessary in cases involving high conflict, disputed custody, or complex financial issues.

Key Differences Between Mediation and Litigation

• Cost: Mediation is generally less expensive than litigation.
• Timeline: Mediation can resolve cases more quickly, while litigation may extend the process.
• Control: Mediation allows the parties to control the outcome; litigation places decisions in the hands of the court.
• Conflict Level: Mediation is typically less adversarial than litigation.

Understanding these differences is essential when evaluating your options.

When Mediation Works Best

Mediation is often effective when both parties are willing to negotiate in good faith and have relatively aligned goals. It is commonly used in cases involving:

• Uncontested or low-conflict divorces
• Parents seeking cooperative custody arrangements
• Situations where preserving communication is important

Mediation can also help reduce costs. For more information on how expenses vary depending on the approach, see
what divorce costs in Lehi.

When Litigation Is Necessary

Litigation may be required when the parties cannot reach agreement or when there are significant disputes that cannot be resolved through negotiation. This is often the case in:

• High-conflict custody disputes
• Cases involving hidden or disputed assets
• Situations involving domestic violence or safety concerns

In these cases, the court’s involvement is necessary to ensure a fair and enforceable outcome.

Mediation and Custody Issues

Custody disputes are one of the most common reasons cases become contested. However, mediation can still be effective in resolving parenting arrangements in many situations.

For a detailed explanation of custody considerations and parenting schedules, see our guide on
child custody and parenting plans in Lehi.

Choosing the Right Approach in Lehi

The right approach depends on the specific circumstances of your case. Some divorces begin with mediation and only move to litigation if necessary. Others require a litigation-focused strategy from the outset.

Factors to consider include:

• The level of conflict between the parties
• The complexity of financial issues
• Whether children are involved
• The willingness of both parties to negotiate

A strategic approach often involves using mediation where possible while preparing for litigation if needed.

Speak With a Divorce Lawyer in Lehi About Your Options

Choosing between mediation and litigation is one of the most important decisions in a divorce case. A clear strategy can reduce cost, protect your interests, and lead to a more favorable outcome.

If you are considering divorce in Lehi, consult with an experienced Lehi divorce attorney to evaluate your options and develop a plan tailored to your situation.

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Divorce litigation is not always the most efficient way to resolve a family law dispute. In many cases, mediation allows the parties to reach a better, more customized, and less expensive result than they would obtain through motion practice and trial. That does not mean mediation works in every case. It does mean that many Utah families benefit from a structured process that focuses on problem-solving rather than escalation.

If you are exploring Utah divorce mediation, it helps to understand what mediation can and cannot do. Mediation is not a substitute for legal analysis. It is a process for working toward settlement. When used correctly, it can resolve disputes involving custody, parent-time, property division, alimony, support, and implementation issues.

Readers in northern Utah County often begin with a local resource such as divorce mediation in Saratoga Springs, divorce mediation in Lehi, or divorce mediation in Eagle Mountain. The broader service areas page for Utah family law representation is also a useful starting point.

What Mediation Is and What It Is Not

Mediation is a confidential negotiation process in which a neutral third party helps the parties work toward resolution. The mediator does not function as a judge. The mediator generally does not issue a binding ruling the way a court does. Instead, the mediator facilitates discussion, helps identify disputed issues, tests positions, and encourages realistic settlement analysis.

Mediation is not weakness

Some people assume that proposing mediation shows weakness. In reality, mediation often reflects a strategic choice to control cost, timing, and risk. A litigant who understands the strengths and weaknesses of the case may prefer a negotiated result over the uncertainty of trial.

Mediation still requires preparation

Mediation works best when the parties exchange meaningful information, understand the financial and parenting issues, and arrive with a realistic framework. Unprepared mediation is often unproductive mediation.

Issues Commonly Resolved in Mediation

Mediation can address nearly every major component of a divorce or post-decree case. That includes divorce claims, custody and parent-time disputes, alimony issues, child support questions, and property division disputes.

Custody and parent-time

Parents can often negotiate schedules better than a court can impose them. Holiday allocations, exchange terms, transportation arrangements, extracurricular coordination, and communication protocols are often more detailed and practical when created through agreement.

Property and support

Mediation can also be highly effective in allocating real estate equity, retirement accounts, reimbursement claims, debt, and support terms. Parties may trade items that matter differently to each of them and structure deadlines in a way a court may not have time to engineer.

Why Mediation Often Saves Money

One of the most practical reasons to mediate is cost. Litigation is expensive. Every contested motion, document request, hearing, and trial preparation step increases fees. In contrast, a productive mediation session can resolve multiple issues in one day and narrow the remaining dispute even if the entire case does not settle.

Settlement reduces downstream litigation

Every issue resolved in mediation is one less issue to brief, prove, and argue later. Even partial settlement can have major value if it reduces the scope of trial.

The cheapest case is not always the best case

That said, mediation is not simply about a discount. It is about efficient resolution on terms that actually work. A cheap but poorly drafted settlement can generate later enforcement problems. That is why careful terms matter.

Readers may also wish to review the article on good-faith participation and enforceability in mediation.

Mediation Often Produces Better Tailored Results

Judges have limited time and limited flexibility. Settlement gives the parties more control. They can design practical provisions for refinancing, sale procedures, school transitions, holiday schedules, communication methods, reimbursement claims, exchange protocols, and future dispute-resolution steps.

Specificity reduces later conflict

A well-drafted mediated agreement should answer foreseeable questions before they become disputes. Who picks up? What time? What happens if one party cannot refinance? How are extracurricular costs shared? What documents must be exchanged? Specificity matters.

Family cases benefit from durable solutions

Because many parties remain connected through co-parenting, durable and understandable agreements are often more valuable than technically winning a narrow issue in court.

When Mediation May Be Less Effective

Mediation is not ideal in every case. Serious domestic violence, coercive control, hidden finances, refusal to disclose information, or extreme power imbalances can make mediation less suitable or require a more structured format with counsel heavily involved.

Disclosure is essential

If one side is withholding financial information, meaningful settlement becomes difficult. Mediation cannot substitute for discovery where the basic facts are not available.

Safety and fairness come first

In cases involving safety concerns, the format may need to be adjusted or litigation may be the better course. Mediation should not become a vehicle for pressure rather than resolution.

Preparation Makes Mediation More Effective

Clients often get the best results in mediation when they prepare in advance. That means understanding the disputed issues, gathering financial records, identifying priorities, and recognizing where flexibility exists. It also means understanding the legal framework before entering negotiations.

Know your likely trial exposure

A party who has no realistic sense of what could happen at trial is more likely to negotiate poorly. Good mediation strategy starts with legal analysis, not just emotion.

Have a structure in mind

Before mediation, it helps to identify the essential terms you need, the secondary issues you can trade, and the provisions that need detailed drafting.

You can also review what to expect in divorce mediation in Lehi, Saratoga Springs, and Eagle Mountain.

Mediation in Post-Decree Cases

Mediation is not limited to initial divorce actions. It can also be effective in post-decree disputes involving decree modification and enforcement of orders.

Modification disputes

Changes in income, relocation, evolving parenting schedules, and shifting needs of the children can all produce modification disputes. Mediation may resolve many of those issues without a contested evidentiary hearing.

Enforcement disputes

Even when a decree already exists, the parties may be able to mediate implementation disputes, payment schedules, document turnover, parenting logistics, and compliance deadlines.

Local examples include modification matters in Riverton, enforcement proceedings in Orem, and family law mediation in Herriman.

Why Local Context Still Matters

Utah family law is statewide, but local practicality still matters. Parents living in Saratoga Springs, Lehi, Eagle Mountain, American Fork, and Pleasant Grove may face commute patterns, school routes, and exchange logistics that differ from families in Riverton, Bluffdale, Herriman, or Tooele. Tailored agreements work better when they reflect those realities.

Relevant city hub pages include American Fork divorce and custody representation, Pleasant Grove divorce and custody services, Bluffdale family law representation, and Tooele divorce and custody services.

Conclusion

Mediation works well in many Utah family law cases because it gives parties a way to resolve real-life problems with more flexibility, more specificity, and often less cost than full litigation. It is not the right tool for every dispute, but where the facts support it, mediation can produce durable, practical, and legally sound results.

If you want help evaluating whether mediation is the right path in your Utah family law case, you can schedule a free consultation with Rifleman Law & Mediation or contact the office directly.

Source

If you are going through a divorce, or divorce modification in Lehi, Saratoga Springs,  Eagle Mountain, (or anywhere in Utah) mediation is not a side conversation. In most contested Utah divorce cases, it is required. Under Utah Code § 81-4-403, when issues remain disputed after a response is filed, the parties must participate in at least one good-faith mediation session. In practical terms, before you ever step into a courtroom to argue child custody, parent time, child support, alimony, or division of property and debt, you are expected to attempt resolution.

For many families in Utah County, mediation is not just a requirement — it is the moment where the case is actually decided.

Rifleman Law & Mediaton offers mediation services, and has over twenty (20) years of mediation experience. Jeff Rifleman is a master mediator on the Utah Courts Mediator Roster, and a mediator mentor.

Mediation is confidential under Utah’s ADR statutes in Title 78B, Chapter 6. What is discussed there is generally not admissible in court. That confidentiality matters. It allows both sides to explore options and negotiate without worrying that every proposal will later be quoted in a hearing. But confidentiality does not mean informality. Mediation is structured, deliberate, and often strategic. It is where leverage is tested and outcomes are shaped.

Most divorce mediations revolve around the same core issues. Child custody and parenting plans are usually the most emotionally charged. Parents must address legal child custody, physical custody, and the parent-time schedule. Holidays, summers, transportation, communication protocols, and decision-making authority all need to be defined. Courts prefer detailed, workable parenting plans, and mediation gives parents the flexibility to design a schedule that fits real life rather than defaulting to a generic template. Walking into mediation without a written parenting proposal often means reacting instead of leading.

Child support is rarely just a math exercise. Utah has statutory guidelines, but disputes often center on income. In Lehi, where compensation frequently includes bonuses or equity components, and in Saratoga Springs and Eagle Mountain, where self-employment and fluctuating income are common, determining accurate gross income can be complex. Health insurance premiums, childcare costs, and overnights all factor into the calculation. Mediation is where those numbers are scrutinized and clarified before they become binding.

Alimony negotiations tend to be equally nuanced. Utah courts look at need, ability to pay, and the marital standard of living. In mediation, those factors are translated into monthly budgets, earning capacity discussions, and duration analysis. Rather than leaving alimony entirely to judicial discretion, mediation allows structured solutions — step-down provisions, review dates, or defined durations — that reduce uncertainty. A thoughtful approach can create predictability instead of prolonged conflict.

Division of marital property and debt is another central component. Utah follows equitable distribution principles, meaning the goal is fairness, not necessarily a mechanical 50/50 split. In Utah County, significant home equity is often at stake. Refinancing timelines, buy-out provisions, retirement account division, allocation of credit card balances, student loans, vehicles, and tax liabilities all require clarity. Retirement accounts, including 401(k)s, IRAs, pensions, and government benefits, must be divided carefully, often through a Qualified Domestic Relations Order. Details matter. Gains and losses during processing, tax consequences, and drafting responsibility should all be addressed in mediation rather than left unresolved.

A typical divorce mediation begins with preparation. Financial declarations are exchanged. Tax returns and account statements are reviewed. Disputed issues are identified. During the session itself, the mediator, acting as a neutral, may bring the parties together briefly before separating them into private caucuses. Proposals move back and forth. Positions evolve. Sometimes the entire case resolves in one session. Other times only certain issues are settled, narrowing what remains for trial. When agreement is reached, the terms are reduced to writing and later incorporated into a stipulation and decree for court approval.

Preparation determines whether mediation is productive or wasted. Clean financial documentation, a structured parenting plan, and a realistic understanding of child support and alimony exposure change the tone of negotiations. Mediation rewards organization and credibility. It exposes exaggeration and incomplete information quickly.

For those searching for divorce mediation in  Lehi, Saratoga Springs,  Eagle Mountain, (or anywhere in Utah) — whether the issue is child custody and support, alimony, parenting plans, division of property and debt, or retirement accounts — mediation is often the most efficient path forward. It can preserve resources, reduce stress on children, and provide tailored outcomes that a court might not craft on its own. View our service areas.

In Utah County, mediation is not a procedural hurdle. It is frequently the decisive stage of the divorce process. When approached strategically and prepared thoroughly, it is where long-term outcomes are defined.

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Jeff D. Rifleman

           “Discourage litigation. Persuade your neighbors to compromise whenever they can. Point out to them how the nominal winner is often a real loser-in fees, expenses and waste of time.”  -Abraham Lincoln, July 1, 1850.

In the spectrum of the recognized alternative dispute resolutions devices, mediation is perhaps the most flexible device allowing party control of outcomes through a structured process.[1] Traditionally, mediation is recognized as a facilitative device appropriate for resolving disputes between parties wishing to preserve an existing relationship[2]. The mediation process itself attempts to facilitate communication between parties through a structured, confidential process conducted by a neutral third party (mediator) wherein parties can clarify the disputed issues, identify underlying interests and explore possible resolutions.[3] Since the parties ultimately craft the solution and terms (self-determination), mediation provides a more flexible process where by the parties can reach mutual satisfaction from creative remedies that may not be available through traditional litigation, or that would not have the ability to preserve the existing relationship. Perhaps the most notable distinction between mediation and litigated resolution is that mediation attempts to structure and preserve the resolution around the relationships between the parties, something that litigated resolution lacks in any consideration.[4]

            The adoption of mediation as the preferred alternative dispute resolution in today’s legal system can be attributed to the Roscoe Pound Conference of 1976 where various legal scholars, judges and administrators met to discuss the current participant dissatisfaction with the legal system including concerns with overburdened court dockets and costs to litigate.[5] Chief Justice Warren Burger presented the keynote speech at the conference and expressed the need for alternative means to attend to various types of disputes.[6] In his speech, Chief Justice Burger advocated the need for an institutionalization of alternative dispute methods within the legal framework to address the needs of participants in dispute.[7] The outcome of the conference discussions resulted in a call for a ‘multi-door’ courthouse concept whereby parties in dispute would have a choice in the method of dispute resolution best suited to achieve the needs of the parties.[8]

Since the 1976 Roscoe Pound Conference, court annexed alternative dispute programs have been organized in every state with the goal to reduce strains on court dockets, to expedite resolution of disputes, and to reduce traditional costs associated with litigation leading to the courtroom.[9] Mediation is the preferred dispute device as it meets not only the needs of the legal system to help reduce court dockets, and the needs of participants to reduce litigation costs, but allows the parties to maintain a greater control in the outcome of the dispute – achieving in the majority of instances an agreement with terms that are acceptable to both parties.

Mediation’s Success Threatened by Opposing Interest of Courts and Parties in the Mediation Process

While overall satisfaction of the courts, providers and participants appears to have been positive, critics charge that mediation’s traditional and primary objectives and goals have been challenged by mandatory participation legislation that ignores preservation of party self-determination in favor of court interests in reducing their dockets. They charge that overzealous courts believe forced participation can result in the same party satisfaction that voluntary participation achieves, and that mediation is an appropriate requirement before accessing traditional litigation in the court. With an average reporting eighty percent settlement rate, one could see why courts are readily eager to mandate disputing parties to at least attempt mediation. What the courts fail to consider is that the high rate of satisfaction is directly linked to the parties’ control over participation and resolution. Continued high settlement rates after implementation of mandatory mediation programs however, may be biased by parties who feel coerced, or intimidated into a settlement.

In her Harvard Law Review note, ‘The Thinning Vision of Self-Determination in Court-Connected Mediation: The Inevitable Price of Institutionalization?’, Nancy A. Welsh asserts that self-determination is a fundamental principle of mediation that made mediation such a boom in the 1970’s and 1980’s and that mediation has now been disrupted with the courts’ own self interest in having civil cases settled.[10] This shift from voluntary party participation to court imposed participation in mediation results in fewer options for participants and more control of the outcome put in the hands of mediators, attorneys and courts.[11] One of the advantages to traditional mediation was a lack of any mandatory participation requirements that empowered the parties to have control of the outcome. The encouragement of voluntary participation based on self-determination of the parties was thought to foster a less hostile environment whereby the parties were empowered to reach mutually agreed upon solutions free from outside influences or defined participation rules. However, with a mandatory approach the fear is that parties may be less likely to settle without a feeling of coercion or pressure to reach an agreement as the only option, thus compromising the power of self-determination that is so critical to the mediation process for the involved parties.[12]

The number of cases that are emerging from issues stemming from the institutionalization of mediation is growing. States have adopted in various forms the Uniform Mediation Act and federal courts have adopted the Alternative Dispute Resolution Act[13]. As the state and federal courts adopt alternative dispute resolution acts that include mediation, more issues come to bear that conflict with the goals between traditional party empowerment mediation and court ordered mandatory mediation. The traditional notion that mediated settlements would be more likely to be followed if both parties had input and voluntary agreement to the settlement was challenged early on after adoption of mandatory mediation laws. With the imposition on parties to participate in mediation on the premise that mandatory mediation would conform to the parties’ needs as well as meet the needs of the courts interests to reduce dockets came a series of cases challenging the implications of harm to parties form a mandatory participation.

Inevitably most of today’s litigated disputes over mediated settlements revolve around challenges to confidentiality of mediation sessions, bad faith participation (through forced participation) and court enforceability of mediated agreements.

Confidentiality as a Core Principle to Mediation Success

One of core principles that appeals to parties in dispute is the ability to reach a mutually agreed upon resolution while keeping the contents of the mediation held in confidence. Traditional mediation and successful court ordered mediation could be a means for parties to resolve their disputes away from public accessible court proceedings. Externally, this is still a marketable sales point for mandatory mediation. But what if the parties can’t reach a reasonable agreement? Are the negotiations, statements and issues discovered in the mediation session excluded from use in any furtherance of the dispute in court proceedings? Parties may not be so ready to participate in mediation if they are without certainty that the entire mediation session will be held in confidence.[14] Mediators themselves may subject themselves to the loss of trust by parties in the process of mediation if the mediator himself is not immune under claim of privilege from disclosing information to the court.[15]

A key role and basic tenant of mediation is for the mediator to establish trust between the parties and the mediation process. Only after trust between the participants and the process exists will the parties be willing to openly share information in a mediation session. Parties to a mediation session may want to avoid public disclosure of personal facts including financial information, investigative reports, plans, etc. A mediator establishes the foundation of trust through assurances to the parties of his/her neutrality and impartiality and further that anything discussed in mediation, whether jointly or in individual caucuses, will be held in strictest confidence.[16] This is often expressed generally in a mediator’s opening statement including a statement that as a neutral third party the mediator’s role is limited to the mediation session and that any information gained in mediation will not be used in litigation. (This is not a foreign policy to the court system. Federal Rules of Evidence Rule 408 encourages parties to participate in settlement negotiation in liability cases and prohibits parties from using settlement offers as evidence[17]). The mediator relies on his or her position as a neutral party to remain immune from any requirement that might put him or her in a position to divulge information obtained under a presumption of confidence or impressions that would show a tendency or bias toward one party over the other and violate the trust established to facilitate the mediation process. If the mediator cannot assure the parties that the mediator is free from any reporting requirement to the courts, the parties may view the mediator as less than impartial and be more hesitant to disclose information that may be damaging in any further litigation.[18] If parties have a distrust of the litigation process initially, any perception that mediation is an extension to the litigation process where confidences may be revealed creates a valid issue where any mandatory mediation rules should address the need to define the scope of confidential communication in mediation sessions.

Current Issues with Confidentiality

            As courts adopt mediation as a valid option to party dispute, the need for creating laws specific to the needs of confidentiality in mediation poses new questions as to when, if ever, should the protection of the legal process supersede mediation requirements for strict confidentiality. Issues involving first amendment and freedom of information challenge this notion and at least one federal district court held that public policy could supersede any confidentiality in mediation sessions.[19] However, these are the exceptions, and courts have endorsed mediation confidentiality and this adoption by courts in the absence of any statute clearly defining mediation confidentiality may be on track to defining a common law privilege for mediation.[20] For example, in NLRB v. Joseph Macaluso, Inc., [21]mediated negotiations failed between an employee union and a retail store chain in Washington State over contracts and back pay. After many months of failed negotiations the parties agreed to attempt to settle their disputed interests enlisting the help of a Federal Mediation and Conciliation Service mediator. When mediation attempts failed to reach a favorable agreement, the parties continued their dispute in litigation. During the course of litigation, the union sought to subpoena the mediator to elicit testimony that would give credibility to the union’s version of the facts that no agreement had been reached. In the absence of this credibility the court found that an agreement had been reached. A subpoena was subsequently revoked based on a contention that 1) mediator testimony is confidential, 2) that confidentiality is crucial to maintaining neutrality, and 3) that  a mediator may not testify about the bargaining sessions they attend.[22] One can imagine the situation presented to both the mediator and the union. Upon review in the United States Court of Appeals, Judge Wallace framed the issue:

“We must determine, therefore, whether preservation of mediator effectiveness by protection of mediator neutrality is a ground for revocation consistent with the power and duties of the NLRB under the NLRA. Stated, differently, we must determine whether the reason for revocation is legally sufficient to justify the loss of Hammond’s (the mediator) testimony…[23] The facts before us present a classic illustration of the need for every person’s evidence: the trier of fact is faced with directly conflicting testimony from two adverse sources, and a third objective source is capable of presenting evidence that would, in all probability, resolve the dispute by revealing the truth.”[24]

After a careful analysis balancing the public’s interest in preserving the mediation process with the interest in discovering the truth of party testimony regarding the mediation the court concluded:

 “ …that the public interest in maintaining the perceived and actual impartiality of federal mediators outweigh the benefits from [the mediator’s] testimony…[25] To execute successfully their function of assisting in the settlement of labor disputes, the conciliators must maintain a reputation for impartiality, and the parties to conciliation conferences must feel free to talk without any fear that the conciliator may subsequently make disclosures as a witness in some other proceeding, to the possible disadvantage of a party to the conference… The resultant injury to the public interest would clearly outweigh the benefit to be derived from making their testimony available in particular cases.”[26]

While federal and state laws are emerging simultaneously regarding confidentiality in mediation, state law perhaps poses the widest variance in approaches to protecting or limiting confidential communication. The scope of these laws range from limited immunity to full immunity of any mediated communication.[27] Not all states have adopted the Uniform Mediation Act, however many have passed laws addressing confidentiality following the UMA’s guidelines for confidentiality.[28] These statutes go a long way in defining what communication is confidential and a general guideline on the exceptions to the privilege. For example, many states require a mandatory reporting for any alleged abuse of children or elders discovered in the course of a mediation session. However, it should be noted that civil rules addressing confidentiality in mediation do not apply when subsequent or related issues in the mediation arise in criminal actions either in state or federal jurisdictions and that the same public policy analysis in protecting mediation confidentiality will at times allow that confidentiality to be breached. In the case of Williams v. State, 178 Ga.App.  216, 217, 342 S.E.2d 703,704 (1986), the court allowed evidence to be introduced from a mediation session in which the defendant admitted embezzling $60,000 from his employer and agreed to repay it as a term of the mediated settlement. He was subsequently convicted.

Due to the differences in scope of confidentiality reflected in each state’s unique statutes, mediators and parties would be wise to discuss any implications the current statutes present to confidentiality concerns in mediation including the creation of the privilege by statute, limiting discovery through contracts and court order, and public policy considerations that would require disclosure.[29]

Good Faith and Meaningful Participation

As legislatures and courts move toward adoption of alternative dispute resolution as a means to more efficiently settle dispute in the parties’ interests, it becomes apparent that the courts have an interest in ensuring that parties participate in ‘good faith’ in alternative dispute resolution sessions in hopes that the parties will use the dispute resolution vehicle as it was intended, and not as a tool to delay litigation, seek information from the other party, increase overall costs associated with the dispute, or to increase emotional frustration. While this interest is valid, it does mask another interest of the court – the courts own interest to reduce overflowing court dockets using mediation and structuring its use to meet the context of court procedure to increase its own efficiency.[30] These interests of the courts come into direct conflict with one of the overarching goals of mediation – self-determination of the parties – and further threaten to undermine confidentiality and mediator neutrality.

In her 1997 South Texas Law Review article, “Good Faith in Mediation–Requested, Recommended, or Required”, law professor Kimberlee K. Kovach, saw the need to address the gap between the traditional court and mediation structures and how the goals of both should address the parties in mediation when requiring parties to participate in good faith.[31]That same year she submitted a paper to the ‘Dispute Resolution Magazine’ advocating in support of a requirement of good faith in court ordered mediation. Reflecting on her analysis and findings from her law review article.[32] Kovach argued that in order for mediation to be successful in the court system that good faith requirements would need to be a part of every mediation to in order to enforce party participation, creativity and invoke collaborative approaches that are all important in ensuring party satisfaction of the mediation process.[33] Otherwise, she asserts, without a mechanism to enforce these mutually beneficial party behaviors, mediation will fail.[34] Kovach does acknowledge that under an enforcement paradigm of good faith participation that there can be an abuse of the requirement by using forced participation as a litigation tactic to as means to discover information, delay proceedings, increase costs or manipulate the other party.

Other advocates of mandatory good faith participation assert that mandatory good faith participation is a part of an overall voluntary process, even though the parties are forced to the table and that good faith requirements preserve the end goals of mediation. In support of this assertion these advocates cite the parties’ mutual right to decline settlement within a good faith mediation session preserves the fundamental fairness and voluntariness of traditional mediation.[35]

One could easily come to the conclusion that courts and legislatures would not have instituted mandatory participation requirements if there were not some perceived advantages for the parties, even if it presented obstacles to the parties’ interests. One of these advantages stems from a perception that mediation may actually expedite the settlement process. Advocates of this position cite that mediation can act as an accelerant to the dispute process by introducing mediation as a settlement event early on in the litigation process.[36] Normally, serious settlement discussions do not happen until late in the litigation process under threat of risk of a win-loss scenario in a courtroom setting. Whereas with a mandatory mediation, forced participation may enable the parties to consider their positions earlier in the litigation process. Instead of the threat of settlement in a winner take all scenario, the parties in mediation will have the opportunity to reach a mutually acceptable dispute resolution where they may better assess their position and risks without a threat or risk of winner take all. If nothing else, forced mediation earlier whereby parties can clarify the issues and interest will tend to open the door for later settlement.[37] The search for a mutually agreed upon solution in mediation not only can lead to the elimination of the one winner, one loser scenario, but also supports finding that settlements reached in mediation will result in binding out-of-court agreements that the parties will more readily follow. (Good-faith mediation requirements have been found to be successful and result in party satisfaction in domestic relations courts when addressing divorce and custody related disputes.)[38]           

Concerns Over Good Faith Participation Requirements

Critics of mandatory good faith mediation participation attack the presumption that forced participation has minimal impact on the parties, the quality of mediation or on the quality of the dispute resolution process through traditional litigation. Conflicts with established policies regarding confidentiality, third-party neutrality, due process, and party autonomy are the immediate concerns arising from forced participation.[39] But Perhaps the paramount concern is a lack of a concrete definition for good-faith participation which is tantamount in understanding the requirements for party participation, court expectations and the when and how sanctions will be applied.

In order to participate in good-faith, participants and their attorneys need to have a clear understanding of the minimal requirements of participation in order to participate in a meaningful way that is acceptable for statute compliance. A mutual understanding of ‘good faith’ must be ascribed to by the court, parties and mediator, otherwise, each cases runs the danger of having a different interpretation of participation requirements. For example, one judge may consider a party who shows up to mediation as having participated in good faith, while another judge may view this with nothing more as a lack of any good faith attempt. Without a clear definition and understanding of expectations, the parties are left to question to what degree they must participate in a mediation once they arrive to meet a good faith requirement, or run the risk of imposed sanctions for failure to meet the court’s expectation of good faith participation. Does it require that a party answer questions, discuss facts and issues, make or consider an offer, participate in a set amount of time, etc. [40]

In Graham v. Baker[41], the Iowa Supreme Court reviewed a debtor’s appeal from a writ of mandamus forcing the creditor to participate in mediation in order to attain a release from a real estate contract. At the core of the issues was not whether the creditor was required to attend mediation to secure the release, but whether the creditor had met some standard in participation in the mediation by a physical appearance. [42] In 1979, the Henrys (debtor) entered into a real estate contract with the Grahams (creditor) for the  purchase of agricultural farmland. Due to a worsening agricultural economy over the next few years the Henrys renegotiated the terms of the contract, but finally were unable to make payment on the contract in December of 1987. The Grahams then retained attorney George Flagg. Flagg initiated forfeiture proceedings, but Iowa code requires that creditors obtain a mediation release before initiating forfeiture proceedings and the parties attended a mediation session in February of 1988.  During the mediation session, Flagg became belligerent and refused to consider the Henrys proposals. Flagg ended the mediation session with an ultimatum that the Henrys either forfeit their farmland, or sell the land within thirty days and deliver the balance due to the Grahams. As the session continued, Flagg continued insisting that the mediator provide the mediation release. The mediator refused to issue the release citing Flagg’s behavior, and extended an attempt at mediation another thirty days. Flagg subsequently filed a notice of forfeiture without securing the mediation release to which the Henrys sought and obtained an injunction from the forfeiture, citing the Grahams failure to secure the mediation release. The Grahams then sought a writ of mandamus to force the issuance of the mediation release, which prompted the Henrys to appeal. [43]On review the court found that the only requirement for the parties under the state statute is that the parties participate in mediation session. The mediator interpreted the statute for its own purposes under a construct that good conduct be a component in defining the meaning of participation. The court rejected this construct and interpretation and held that the mediators duties were only to listen, attempt to mediate,, and encourage the parties in and advisory role. And while the court found Flagg’s behavior to be an obstacle to any beneficial attempt at mediation and cost his client financially, it found that the only requirement imposed on him was to be present at the mediation session to satisfy the state statute.[44] The implication set forth in this case as applied to defining good faith is easily understood. If a good faith participation requirement it is not clearly defined, all parties are subject to increased costs, delay and potential sanctions if they attempt to apply their own construction and interpretation of a participatory requirement. In this case, the court addressed the issue from a minimalist definition of participation as requiring that a party only attend the session. In the next case, the court goes to the other extreme and allows an arbitrator to define the participation requirement.

In Gilling v. Eastern Airlines, Inc.[45], a United States District Court in New Jersey, constructs a definition of participation that includes consideration of the parties’ behavior.  The plaintiffs were passengers on an Eastern Air Lines flight flying from Miami to Martinique in November of 1988. Somewhere along the flight plan there were two incidents (not described) involving knives, which caused the plane to divert to St. Croix and eject the plaintiffs from the flight. The plaintiffs filed claims for breach of contract along with a list of other alleged torts inflicted upon them. The matter was referred to compulsory arbitration and the case was heard before an arbitrator in May of 1987 where the plaintiffs were in attendance with the defendant’s attorney. The arbitrator found in favor of the plaintiffs citing that the attorney for the defendants did not participate meaningfully in the arbitration. The court then asked the arbitrator for a factual finding on the question of whether the defendants participated in a meaningful way. In November of 1987, the arbitrator submitted his findings stating, “I find as a fact that she [defendant’s attorney] merely ‘went through the motions.’ I find as a fact that the foregoing was a predetermined position taken by her office, even though that position remains obscure to me. I find as a fact that her ‘participation’ in arbitration proceeding rendered it a sham…”[46] The arbitrator then further elaborated citing belligerent verbal retorts by the attorney when asked about settlement details. The defendants brought this request for a trial de novo, excepting to the arbitrators findings that they did not participate in the arbitration session in a meaningful way.  After reviewing the applicable rule, General Rule 47, the court determined that it did not have any standard of review to guide them in determining the validity of the arbitrator’s findings. General Rule 47(E)(3) allows the arbitrator to determine whether a party participates in a meaningful matter. This in essence puts the determination of the degree of party participation required or behavior required solely in the hands of the arbitrator and without being subject to court review. Allowing the findings of the arbitrator, the court found that arbitration, in order to serve property, requires that the parties participate in a meaningful manner. In support that the defendants did not participate in a meaningful manner, the court found that the defendants had thwarted the arbitration from the outset, intending to reject any outcome of the arbitration. The court found the need for parties to participate in arbitration in ‘good faith’ and that absent good faith participation “…such an attitude increases the costs and reduces the efficiency [of arbitration]… [and] can serve to discourage the poorer litigant and diminish his or her resolve to proceed to final judgment.”[47] Additionally, the court found that absent a meaningful participation (good faith) that sanctions are appropriate. (In this case the defendants  were ordered to reimburse the passengers for costs and fees incurred associated with the arbitration, as well as costs associated with opposing the defendant’s demand for trial de novo.)[48]

What Graham and Gilling illustrate is how absent an object measure of good faith participation, parties are subject to the whim of the court, or mediator (or arbitrator) depending on the court’s interpretation of any standard.  In Graham, participation, without further direction by statute was relegated to a  party making physical presence. In Gilling, participation, was determined by a parties actions not consistent with the object of an arbitration session, forcing an inefficient use of the process. One would have to question however, if both approaches are equally futile and inefficient when forcing a party to participate in a process that it has already determined the outcome (Graham), or imposing sanctions on a party for failing to meet a subjective determination of a meaningful participation when that party and even the court did not have any standard available to pre-determine what was required. These cases illustrate the ongoing difficulties faced by parties, mediators and courts in determining either good faith or meaningful participation when posed as requirements to mandatory mediation. 

But are there other implications when a party acts in bad faith other than threats of sanctions against that party? What if there is a bad faith participation? That is about as hard to define as defining good faith participation. Perhaps it is easier to describe bad faith as intentions of parties to frustrate the process for their own motives. It would be nice to assume that both parties will have the same respect for good faith and meaningful participation when ordered to mediation. However, a more realistic assumption is that parties view mandatory mediation differently based on their positions, interests and goals. These can include financial costs, publicity concerns, emotional costs, time constraints, and any other interest the party wishes to protect. One party may or may not know some of the other party’s interests, and that party may have its own goals that can only be reached through an abuse of the mediation process that would allow that party to attain information, delays, or costs that would be detrimental to the opposing party’s overall protective interests. In this scenario where one party participates in mediation under the guise of a meaningful good faith participation, the vulnerable party acting in good faith is potentially subjecting itself to exposure detrimental to it own interest in the dispute. Unfortunately, bad faith conduct is often difficult to discover as its definition is as vague and subjective as good faith. However, just because we’ve identified that subjective good faith requirements are left to the decision maker (whether that be the mediator, arbitrator, legislature or judge), does not mean that we should not continue to attempt to define what good faith participation looks like within particular contexts. Kimberlee Kovach, who I’ve already acknowledged as an advocate of mandatory good faith requirements, proposes that any defining good faith participation in the mediation context should start by examining how good faith has been used in other already established definitions in other areas of law[49] and that even if a strongly defined definition applicable to mediation cannot be found that “…in the end, perhaps it is like obscenity: you know it when you see it.”[50]

            Kovach, offers criteria for good faith definition by discussing generally what good faith is not and then offering a list of suggested factors to include in statutes to aid in the determination of good faith participation.[51] She asserts that good faith mediation does not necessitate reaching an agreement, or that they will be more likely, as mediation can be just as beneficial and valuable to the parties even if there is not agreement. Additionally, good faith does not require the parties to have a sincere desire to resolve the dispute. Nor does it require full disclosure to the other party or mediator or that the party conform to any set behavior, although the parties should attempt to show behavior showing an attempt to participate in a meaningful way.[52] Kovach suggests the following factors as considerations in constructing a good faith definition be included in statutes as a way to present some sort of objective standard that courts, mediators, lawyers and parties in dispute can follow to assess good faith participation:

·         arriving at the mediation prepared with knowledge of the case both in terms of the facts and possible solutions;

·         taking into account the interests of the other parties;

·         having all necessary decision-makers present at the mediation;

·         engaging in open and frank discussions bout the case or matter in a way that allows mutual understanding;

·         not lying when asked specific or direct questions;

·         not misleading the other side;

·         demonstrating a willingness to listen to all parties;

·         being prepared to discuss you interests openly;

·          having a willingness to explain specific proposals and refusals.[53]

While Kovach’s suggestions have their merit, the one fact that these cannot address a party’s mental unwillingness to participate or the ability for the decision maker to determine the degree to which the party believes they have attempted to participate or their willingness to forego mediation in favor of a potentially more costly and risky litigation process. No matter whether lawmakers address mandatory participation determination by a ‘meaningful participation’ standard, or ‘good faith’ standard, or some other criteria to define and to demonstrate compliance with mandatory mediation, it is obvious that some definition and review standard has not yet reached universal acceptance. In addition, concerns that address bad faith participants who act in their own interest to disrupt or avoid the benefits of mandatory mediation, and the sanctions imposed on well-meaning parties who attempt to minimally participate or choose not to participate in favor of traditional litigation are areas for further consideration when law makers attempt to construct mandatory mediation requirements.

Enforcement of Mediated Agreements

Mediation, whether or not court ordered, offers parties in dispute the ability to cooperatively craft settlement agreements. This allows the parties to provide the conditions by which they preserve their interests in the dispute. Additionally, mediation scholars assert that when parties mutually assent to the stipulations of mediated agreements that they will have ownership in the agreement and will likely comply with those stipulations.[54] While this may be true, not all mediated agreements result in strict compliance and the issue of enforceability of a mediated agreement arises. Most disputes involving mediated agreements that end up in traditional litigation apply common law contract and related causes of actions.  However, mediated agreements subject to confidentiality rules call into question whether an agreement exists at all, what laws and remedies should be applied to non-compliance to agreements, what powers does a court have to settle challenges to the terms of the agreement, and can an agreement be enforced when it is against public policy. All of these questions exist likewise when applying traditional common law to contractual agreements. However, the kingpin to understanding the implications of mediated agreements lie with an understanding of the rules affecting confidentiality that play a defining role on the ability of a party to fully invoke traditional common law actions and their processes. More to the point, a mediated agreement cannot be fully reviewed under traditional common law if there is information that cannot be obtained due to strict confidentiality rules.

I’ve previously discussed some of the issues with confidentiality and the importance that confidentiality plays in maintaining the high integrity of mediation. While a strict confidentiality rule with no exceptions, would certainly preserve the integrity of the mediation process, it would certainly as well impose constraints on common law causes of action. Just imagine two businesses that reach a mediated agreement. If one, or both, of the parties later disagrees with the terms whether from mistake, misunderstanding, coercion, and a strict construction of confidentiality would preclude the use of any discovery of information used in mediation to attain the agreement in any court action.[55] The following discussion of a Texas case shows how a determination of strict confidentiality works not as a shield to protect the party in a mediated agreement, but deprives the party from invoking common law rules that would otherwise support enforcement.[56]

In Vick v Waits,[57]an unpublished Texas Court of Appeals case, the parties entered into a negotiated settlement agreement regarding construction of a building and the Vicks subsequently sued the contractor and Waits for breach of the settlement and fraud in the inducement in making the agreement. The Vicks (Gary and Carolyn) petitioned the court for an appeal of a summary judgment granted in favor of the contractor, Bantam and sub-contractor, Waits. The Vicks had contracted with Bantam for the construction of an office building. After the construction the Vicks were not satisfied with Bantam’s performance and attempted to mediate their differences and arrived at a settlement agreement whereby Bantam agreed to use “use its best efforts, without recourse or legal obligations to cause all said subcontractors and engineers, … to cooperate with [Vicks] on said project.”[58] Months later, the Vicks sued for Bantam and Waits for breach of the mediated settlement agreement alleging that they did not in good faith cooperate with the Vicks in resolving warranty issues and that the Vicks were fraudulently induced into signing the mediated settlement agreement. In support of the allegation the Vicks attempted to introduce the representations in mediation made by the Bantam used as a basis for agreeing to a settlement agreement, including 1) that the settlement agreement would be enforceable against the subcontractors, and 2) the subcontractors would use their best efforts to cooperate any corrections. Bantam and Wait filed a motion for summary judgment asserting that they had complied with the terms of the settlement agreement and denied any claim of fraud against them and that any claim of fraud created a fact issue whereby the Vicks could not produce any evidence that they misrepresented any facts in the mediation session that would have fraudulently induced the Vicks to enter the agreement. In its decision for Bantam and Waits to exclude communications from the settlement session, the court relied on Section 154.073 of the Texas Alternative Dispute Resolution Act that provides that communication relating to a dispute made by a party in an alternative dispute resolution procedure is confidential, and not subject to disclosure and may not be used as evidence in a judicial or administrative proceeding.[59] The court went on to find that since there is no evidence to support a finding of fraudulent misrepresentation that the summary judgment by the trial court in favor of Waits was affirmed.

Vicks show illustrates how strictly adhered to confidentiality rules can interfere with the application of common contract law to mediated agreements to the detriment of a good faith participating party – how the very evidence necessary for an analysis under contract law is made unavailable.[60] It raises the question of what sanctions can be applied to a party who secures an agreement in bad faith, yet cannot be discovered through traditional discovery means. Where there are jurisdictions that do not have clear confidentiality standards or lack exemptions to address the need to follow closely common law contract evidence admission, parties will find a number of rationales applied by the courts when piercing mediation confidentiality.[61]

The courts, of course, can pierce the confidentiality without explanation when there is statutory support supporting the piercing, or when there is not, it may allow the evidence without explanation when there is no objection. In either case the introduction of confidential-violative evidence is left to the court without any explanation to the party. However, there are other cases where courts have explained their use of statutorily permissible piercing of confidentiality and where the statute is ambiguous, have tried to look to the legislative intent of mediation confidentiality or public policy interests in allowing the breach.[62] It is desirable in most cases to support a common law exception that would allow consistency and protect against bad faith use of the mediation process to avoid disclosure that would support a clear understanding of the agreement. Enforceability of mediated agreements was once left to the honor of the parties who mediated the settlement. However, as mediation becomes a legal alternative to litigation and where the outcome is a binding agreement in law, the rules should reflect the need to not only protect the mediation process, but should offer protection to parties who in good faith rely on the outcome of mediation as reviewable and enforceable as any other legally binding agreement.

Conclusion

Mediation in our modern legal system has grown from a grass roots alternative to help parties resolve their disputes before enlisting traditional litigation, to a mandated and statutorily ruled process that parties must minimally explore before having a cause of action heard before a court. Courts have eagerly adopted mediation for its potential to reduce overflowing court dockets only to find that at times that they are ill-equipped to address issues unique to mediation including self-determination, confidentiality of parties, neutrality of the mediator, and enforceability of mediated agreements. Statutes have tried to address the need to preserve the traditional qualities of mediation while balancing the legal ramifications resulting from this preservation that include forced participation, bad faith abuse of the process to inflict damage on the other party, and conflicts arising when attempting to apply traditional common law processes to resolve these stemming ramifications as they appear in the court system.  I’ve attempted to touch only on three core issues where mediation and common law issues conflict are most pronounced – confidentiality, good faith/bad faith participation and enforceability of agreements. These three issues will most often form the basis or core to most litigation arising from mediation. Understanding how each of these relate to traditional mediation and the expectations of modern day court-annexed mediation will give parties, mediators, attorneys, courts and legislators a better guide for addressing future mediation issues as they arise.

Jeff D. Rifleman

[1] See Kimberlee K. Kovach, Mediation: Principles and Practice 14 (3d ed. 2004) (defining mediation as “… the process where the third party neutral, where one person or more, acts as a facilitator to assist in resolving a dispute between two or more parties.”).

[2] Ibid. 14.

[3] Ibid. 14,15.

[4] Kent L. Brown, Comment, Confidentiality in Mediation: Status and Implications, 1991 J. Disp. Resol. 307, 309 (1991).

[5] Kovach, supra note 1, at 32.

[6] See Generally Warren E. Burger, Agenda for 2000 A.D.-A Need for Systematic Anticipation, 70 F.R.D. 83 (1976); see also Warren E. Burger, Isn’t There a Better Way?, 68 A.B.A. J. 268 (1982).

[7] Ibid.

[8] See Frank E. A. Sander, Varieties of Dispute Processing, 70 F.R.D. 111 (1976) (advocating a multi-door dispute resolution system).

[9] See National Association for Community Mediation http://www.nafcm.org (Listing court annexed mediation centers in US states and territories).

[10] Nancy Welsh, The Thinning Vision of Self-determination in Court-connected Mediation: The Inevitable Price of Institutionalization? 6 Harvard Negotiation Law Review 1,3 (2001).

[11] Ibid. at 3.

[12] Ibid. at 6.

[13] See Generally Uniform Mediation Act of 2003, National Conference of Commissioners on Uniform State Laws (2003) (setting a framework for states to adopt alternative dispute resolution statutes); Alternative Dispute Resolution Act of 1998, 28 U.S.C. § 652 (Supp. 1999) (encouraging federal district courts to adopt alternative dispute resolution programs).

[14] See Ulrich Boettger, Efficiency Versus Party Empowerment–Against a Good-Faith Requirement in Mandatory Mediation, 23 Rev. Litig. 1, 29 (2004).

[15] See Shawn P. Davisson, Balancing the Scales of “Confidential” Justice: Civil Mediation Privileges in the Criminal Arena – Indispensable, Impracticable, or Merely Unconstitutional?, 38 McGeorge L. Rev. 679, 697 (2007).

[16] Kovach, supra note 1, at 263.

[17] See Generally Fed. R. Evid. 408.

[18] Kovach, supra note 1, at 264.

[19] United States v. Kentucky Utils., 124 F.R.D. 146, 150 (E.D.Ky.1989).

[20] Kent , supra note 4, at 316-17.

[21] 618 F.2d 51 (9th Cir. 1980).

[22] Ibid. at 53.

[23] Ibid. at 53.

[24] Ibid. at 54.

[25] Ibid.

[26] Ibid. at 56

[27] Kent, supra note 4, at 317.

[28] Ibid.

[29] See Generally Hear No Evil, Speak No Evil: The Intolerable Conflict Between the Duty to Maintain Mediation Confidentiality and the Duty to Report Fellow Attorney Misconduct, 1997 B.Y.U.L.Rev 715 (discussing general source of confidentiality protection applied to mediation).

[30] See Steven H. Goldberg, “Wait a Minute. This Is Where I Came In.” A Trial Lawyer’s Search for Alternative Dispute Resolution, 1997 BYU L. Rev. 653, 655 (1997).

[31] See Kimberlee K. Kovach, Good Faith in Mediation–Requested, Recommended, or Required? A New Ethic, 38 S. Tex. L. Rev. 575, (1997).

[32] Kimberlee K. Kovach, Lawyer Ethics in Mediation: Time for a Requirement of Good Faith, 4 No. 2 Disp. Resol. Mag. 9, (Winter, 1997).

[33] Ibid. at 9.

[34] Ibid.

[35] See David S. Winston, Comment, Participation Standards in Mandatory Mediation Statutes: “You Can Lead A Horse to Water…”, 11 Ohio St. J. on Disp. Resol. 187, 189 (1996).

[36] Ibid. at 190.

[37] Ibid. at 191.

[38] Ibid. at 192, citing Lynette C. Hale & James A. Knecht, Enriching Divorced Families Through Grass Roots Development of Community-Wide Court-Referred Mediation Services, 24 CONCILIATION CTS. REV. 6, 15 (1986).

[39] See Maureen A. Weston, Checks on Participant Conduct in Compulsory ADR: Reconciling the Tension in the Need for Good-Faith Participation, Autonomy, and Confidentiality, 76 Ind. L.J. 591, 615 (2001).

[40] See generally Alexandria Zylstra, The Road From Voluntary Mediation to Mandatory Good Faith Requirements: A Road Best Left Untraveled, 17 J. Am. Acad. Matrim. Law. 69, 88 (2001).

[41] See Graham v. Baker, 447 N.W.2d 397 (Iowa 1989).

[42] Ibid.

[43] Ibid.

[44] Ibid. at 400, 401.

[45] See Gilling v. Eastern Airlines, Inc. 680 F.Supp. 169 (D.N.J.1988).

[46] Ibid. at 170.

[47] Ibid. at 170.

[48] Ibid. at 169.

[49] Kovach, supra note 31, at 600.

[50] Ibid. at 600, citing Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

[51] Ibid. at 610, 615.

[52] Ibid. at 610, 611.

[53] Ibid. at 615.

[54] Kovach, supra note 1, 356.

[55] See Peter Robinson, Centuries of Contract Common Law Can’t Be All Wrong: Why the UMA’s Exception to Mediation Confidentiality in Enforcement Proceedings Should be Embraced and Broadened, 2003 J. Disp. Resol. 135, 160.

[56] Ibid. at 162.

[57] See Vick v. Waits, 2002 WL 1163842 (Tex. App. Dallas 2002).

[58] Ibid. at 2.

[59] See TEX. CIV. PRAC. & REM.CODE ANN. § 154.073(a) (Vernon Supp.2002).

[60] Robinson, supra note 55, at 161.

[61] Ibid. at 164, 165.[62] Ibid. at 165.

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