Utah Mandatory Domestic Mediation and Mediator Qualification
The Situation. Sandy and Luke are litigating a pain-staking divorce. After the answer is filed, temporary orders are needed. Divorce mediation is required in Utah before the case may proceed through the court process. Can temporary orders be filed before mediation? Does it matter who is used as a mediator? And how can attorneys expand their practice to become a domestic mediator in Utah?
Mandatory Divorce Mediation Requirement. Utah Code Annotated Section 30-3-39 (effective May 2, 2005) requires that all divorce cases that have had a petition and answer filed must be mediated on any contested issue before the case can move forward in the court system.
What About Temporary Orders or Waiving Mediation? The requirement for mandatory mediation in all contested divorce cases does not preclude the making of pretrial temporary orders. Severe-conflict cases can be dismissed for good cause, as deemed by the ADR Office or by a court-qualified mediator. “Good cause” is usually defined to include past physical abuse, or other reasons as deemed by the court. An application for waiver from mediation can be found at www.utcourts.gov/mediation/divmed/forms.asp.
Basic Court-Qualified Mediator Qualification. Because the qualification process for mediation is done at the state-court level, each state has its own requirements for becoming a mediator. How does a person qualify to be a mediator in the state of Utah? And how does a mediator stay on the court-qualified roster each year?
Before qualifying as a domestic mediator, the mediator must first become a court-qualified mediator. Changed in 2007, the Utah process describes a “court-qualified mediator” as a person who has completed a 40-hour court-approved basic mediation training in the last three years. Further, the mediator must have 10 hours observing a court-qualified mediator, and must perform 10 hours solo mediating or co-mediating with a court-qualified mediator. After completing the training and mediation experience, the person can submit an application to the court to become a court-qualified mediator. No additional experience or formal schooling requirement is required to become a mediator in the Utah. That is, there is no requirement that a court-qualified mediator in Utah must be an attorney. However, attorney-mediators give a unique perspective to the process and can highly benefit the clients.
The mediator must submit to the Administrative Office of the Courts a certificate of training, a log of observation and mediation, a 100-word biography, applicable fees, a list of the geographic areas where he or she will mediate, and any specialties of practice as designated in
Utah Code of Judicial Administration Rule 4-510. The Director of Dispute Resolution Programs (Director) will review the application and send the mediator a link to the Utah ethics exam for mediators. After the mediator successfully completes the ethics exam, he or she is accepted onto the court-qualified mediator roster. The mediator can work in any mediation specialty except domestic mediation cases (see below).
Domestic Mediator Qualification. In domestic mediation cases, Utah R. Judicial Admin. Rule 4-510(3) requires 32 additional hours of court-approved domestic mediation training, which includes six hours of domestic violence training. This domestic training is in addition to the basic mediator training discussed above, and the 20 hours of experience required. Further, under a new 2007 requirement, domestic mediators must work with a “domestic mentor.” The domestic mentor gives the domestic mediation candidate experience observing a minimum of two domestic mediation sessions, then co-mediating two domestic mediations, and finally solo-mediating with a domestic mentor observing two domestic mediations. Each of these sessions includes debriefing and analysis afterward with a mediator who has domestic mentor status.
Other Mediation Genre Training. Basic mediation training and domestic mediation training are the only specific categories designated in the Code of Judicial Administration. However, a mediator may need additional training to volunteer or work for certain Utah mediation entities.
For example, there is a statewide Victim Offender Mediation Program (VOMP), which provides a forum for crime victims to mediate with juvenile offenders. This program requires additional training, typically from six to 12 hours. VOMP allows victims to have questions answered about the crime, set up a plan for restitution, and work toward closure for the incident. VOMP is shown to reduce the rate of recidivism. Besides VOMP, there is parent/teen mediation and truancy mediation performed by various entities, which require additional training of three to eight hours.
Continuing Education Requirement. After mediators are qualified on the court roster, they are not finished in terms of training, experience, and conduct. To maintain court-qualified mediator status, a mediator must continue to be of good moral character, conduct at least three pro bono mediation cases per year, conduct at least six mediations during the year, complete six hours of ADR training, and submit an annual report to the Director of cases completed in mediation, including the case number and status.
Avoiding Training Traps. Attorneys should confirm with the Director that the training they are attending is qualified training. Especially when the training is performed outside Utah, permission and confirmation of training status as meeting Utah requirements should be requested before the training.
After training, it is important to finish the requirements and application process, because the training remains valid for only three years. The attorney should plan early in the year to attend CLE sessions and conduct the six cases of mediation. If an attorney has not reached the threshold by October, he or she should consider volunteering for one of the many programs needing volunteers and work out CLE options.
Networking as an Attorney Mediator. After an attorney has received court-qualified mediator training, networking is essential for a successful mediation practice. The Utah State Bar has an ADR Section, which attorney and non-attorney mediators may join. The ADR Section sponsors many CLE and networking events.
The Utah Council on Conflict Resolution (UCCR) is the largest mediation organization in Utah. Information can be found on www.uccr.net. Monthly “brown bag” CLE’s are held in Salt Lake County, and quarterly “brown bag” CLE’s are held in Utah County. The UCCR Symposium is held each spring, hosting well-known mediators as speakers. Networking within the attorney’s own sphere of influence, and making use of the UCCR and ADR Section resources, can enhance a mediation practice.
Effective mediation is a rewarding experience for parties, attorneys, and mediators. And recall that when working with contested domestic cases, mediation is mandatory. Becoming a domestic court-qualified mediator can enrich an attorney’s law practice.
 Training is conducted either by a master mediator as designated in Utah Code Jud. Admin. Rule 4-510(3)(D) or court-approved training provider as prescribed in Utah Code Jud. Admin. Rule 4-510(3)(B)(i).
 The exam application can be found at www.utcourts.gov/mediation/application.
 Utah has no formal education requirements. Other states, such as Michigan, require that the applicant meet one of the following: (a) be a licensed attorney, licensed or limited licensed psychologist, licensed professional counselor, or licensed marriage and family therapist; (b) have a masters degree in counseling, social work, or marriage and family therapy; (c) have a graduate degree in a behavioral science; or (d) have five years’ experience in family counseling. See Mich. Ct. Rules, Rule 3.216.
 The test is a multiple-choice, open-book test that covers Utah Ethical Guidelines Rule 104. If the mediator does not pass the test, he or she may re-take the test.
 A domestic mentor is a person who has completed 300 hours of domestic mediation and met other court qualification, such as an application and orientation as deemed by the Director.