Mediation: Making the best out of a bad situation

by JED LAYTON

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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