Arbitration/Mediation


Introduction Statement

Do you have a Divorce proceeding which has taken way too long to complete? Are you a person of limited financial means? Do you just want it to be over? If your answer is “yes” to any of these questions, you should consider using Arbitration to resolve your Divorce case. Arbitration can be used as a means to resolve all aspects of your Divorce case, or only certain difficult or contentious issues, such as child custody, alimony, property division, and/or debt division. The answers to many of your Arbitration questions can be found in the paragraphs below.

About Dr. Spencer

Dr. Spencer holds both a Juris Doctorate (law degree) from Brigham Young University and a Ph.D. in Economics from Utah State University. Dr. Spencer has practiced law for more than thirty (30) years in the areas of domestic disputes - Divorce and Child Custody cases – real estate disputes, contract disputes, and various other small business disputes. Dr. Spencer has also been appointed by various Courts as a Special Master or private judge, and has provided expert testimony in various domestic and real estate cases. Beginning in 1994, Dr. Spencer began providing mediation and arbitration services in both domestic and real estate cases. Dr. Spencer's complete Curriculum Vitae will be provided upon request.

What is Mediation?

Mediation is an "informal dispute resolution process," overseen by an individual trained in conflict resolution, called a Mediator. The Mediator meets with both parties (either together or separate rooms) and attempts through "shuttle negotiations" to find middle ground between the parties by: (1) determining concerns of the parties, (2) clearing up any misunderstandings between the parties, and (3) offering potential resolutions. Mediation, however, does not always resolve the parties' disputed issues. Either or both parties may be represented by an attorney during the Mediation process, but it is not necessary or required.

What is Arbitration?

Arbitration is also an “informal dispute resolution process," overseen by an experienced private judge, called an Arbitrator. In an informal setting, the parties each provide documents, as well as witness testimony, to the Arbitrator on the issues in dispute, such as child custody, alimony, property division, and/or debt division. Based on the documents and witness testimony provided, the Arbitrator then issues a written decision (called an “Arbitration Award”) on the issues presented by the parties. Ths Arbitration Award is then filed with the Court, and a Decree of Divorce is then issued by the Court utilizing the terms of the Arbitration Award. Either or both parties may be represented by an attorney during the Arbitration process, but it is not necessary or required.

When is Arbitration Generally Used?

Some Arbitration proceedings are required by federal law, such as in various labor disputes. Others are required by contract in the event of a dispute. Although not required by state law, domestic cases - such as Divorce and Child Custody cases – are also arbitrated on a routine basis in many states, as the use of Arbitration can avoid a lengthy and bitter dispute over issues such as child custody, alimony, property division, and/or debt division.

Who Selects the Arbitrator?

An Arbitrator is selected through the issuance of a Court Order, or the execution of a written agreement between the parties. This Court Order or written agreement must describe the following: (1) the issues to be ruled upon by the Arbitrator; (2) the limitations placed on the Arbitration process (such as time limitations and document exchange limitations); and (3) how and when the written Arbitration Award will be issued to the parties by the Arbitrator.

Is Divorce Arbitration Permitted In Utah?

In 1994, the Utah Legislature adopted statutory guidelines promoting Alternative Dispute Resolution, including both mediation and arbitration. Because Mediation is mandatory in many Utah Counties, it is used on a regular basis. Arbitration has yet to be widely used as an alternative dispute resolution method in Utah Divorce cases, but its' use grows each year, due to the savings in both time and money associated with its' use.

What Are The Benefits of Divorce Arbitration?

In addition to being a significantly faster way to resolve the issues disputed by the parties, Arbitration in Divorce cases offers the following additional benefits:

  • The Divorce Arbitration process is confidential and private
  • The parties set a schedule which is both flexible and convenient to them
  • The parties control which issues are brought before the Arbitrator
  • Arbitration is the final resolution of all issues addressed during Arbitration
  • An Arbitration Award can become the basis of an enforceable Divorce Decree

Arbitration offers the predictability of having an Attorney (private judge) – with vast experience in domestic matters – resolve the parties' issues, rather than relying on a judge - who may have little or no experience in domestic matters – resolve the parties' issues. In addition, the Arbitration process is governed by a written Arbitration Agreement negotiated between the parties, with the scope and rules of the Arbitration proceeding determined by the parties (or their attorneys). This allows Divorce Arbitration to be tailored to the specific needs of the parties.

Does the Mediator/Arbitrator Represent the Individual Parties?

The short Answer is “no." The Mediator/Arbitrator is a neutral professional who does not represent either party. Each party may select an attorney of his or her choice, should that party desire legal counsel.

The Mediation/Arbitration Process

The Mediation/Arbitration process is completed utilizing the following steps:

Process Planning Meeting: The parties will each attend either by phone or in-person a 20 minute planning meeting with Dr. Spencer to address the following: (1) a description of the Mediation/ Arbitration process to be utilized; (2) a determination of the list of issues to be resolved during the Mediation/Arbitration process; (3) the establishment of a time-line for the exchange of documents; (4) the establishment of a time-line for the exchange of written statements by the parties and their witnesses; (5) the determination of whether Trial Brief will be submitted by the parties to Dr. Spencer; and (6) establish a firm date for Mediation/ Arbitration.

Presentation to the Medication/Arbitrator: On the day selected for Mediation/Arbitration proceeding, the following process will be used:(1) both parties will be permitted to make an opening statement on the list of issues to be resolved through the Mediation/Arbitration proceeding; (2) the parties will then be assigned to separate rooms; (3) Dr. Spencer will then meet with each party separately to discuss the list of issues to be resolved through the Mediation/Arbitration proceeding; (4) Dr. Spencer will then assist the parties in coming to an agreement on all issues that can be resolved through Mediation; (5) A written agreement on the issues resolved through Mediation will be generated and signed by the parties; (6) for those issues which are not resolved through Mediation, Dr. Spencer will then hear testimony and review the documents in support of each parties' position; (7) Dr. Spencer will then conclude the Arbitration proceeding; and (8) Dr. Spencer will issue a detailed written Arbitration Award, which incorporates the issues resolved through Mediation, as well as his ruling on those issues which were not resolved through Mediation.

Post Process Actions: Either party, or an attorney representing a party, may file the written Arbitration Award with the Court, along with a Motion to Confirm the Arbitration Award.

The Cost of the Mediation/Arbitration Process

The cost of the Mediation/Arbitration process will be determined at the Process Planning Meeting, and will depend on the issues to be addressed through the Mediation/Arbitration proceeding. Unless agreed upon by the parties, or otherwise determined by the Court, the cost of the Mediation/ Arbitration process will be divided equally between the parties.

If you have other questions, you may contact Dr. Spencer at one of the following numbers: Office: 801-566-1884 or Cell: 801-244 7778.

Can I Modify a Divorce Decree or Child Custody Order?

The short answer is yes, but you must meet certain requirements. Existing Court Orders related to custody, visitation (also known as parent-time), child support or alimony are subject to modification if the party seeking the modification can demonstrate that there has been a substantial and material change in circumstances which warrant such a change. Please contact one of our attorneys to see if the facts of your case warrant the change in a exisiting current permanent order.

Family Law

Family Law includes the following types of legal matters:
  • Divorce
  • Child Custody (aka "Paternity")
  • Protective Orders
  • Grandparent Visitation
  • Modification of an existing custody, visitation (parent-time), child support or alimony orders

How Does the Divorce Litigation Process Compare to Other Matters?

The divorce litigation process is nearly identical to the litigation process in any other civil litigation, with one exception in divorce and other Family Law cases the parties have the ability to seek temporary orders. Temporary Orders are orders that last during the pendency of the Family Law case. Other than this exception, each divorce case proceeds with the following steps: (a) filing of a Complaint or Petition, (b) filing of an Answer and perhaps a Counterclaim, (c) completion of Discovery, (d) scheduling and attending a Pretrial, and (e) scheduling and attending a Trial. For a more complete discussion of the litigation process see the "Overview of the Litigation Process" tab of our website. It is at this critical juncture, before the litigation process even starts, that the advise of a seasoned professional, such as the attorneys at T.R. Spencer Law Office, can be most beneficial to you, the potential client. The staff and attorneys at T.R. Spencer Law Office, have significant experience in divorce litigation and can help you get through this process with a minimum of stress. Please call so that we can discuss the unique facts of your case.

What Do I Need to Know About a Child Custody (Paternity) Matter?

If you are not married to the parent of your child, then you have a child custody (or paternity) matter. With the exception of alimony, personal property, real property and debts (these issues are not addressed in a child custody case), a child custody case is handled in the same manner as a divorce case. Please review the divorce information presented above and the Overview of the Litigation Process" tab of this website for additional information.

What do I Need to Know Right Now About Divorce?

It is often said that the decision to divorce a spouse, whether the marriage was of short or long duration, is one most difficult and stressful decisions a person will ever have to make. Successfully navigating the divorce court process requires clear thinking, experience and time, as the outcome will have an effect on the lives of children, parents and even grandparents for years to come. If you are considering filing for divorce, some pre-planning now can benefit your during the divorce process. Please consider the following:
  • If custody is an issue, can you provide of your involvement with your children?
  • If child support is an issue, can you demonstrate the incomes of both parents?
  • If alimony is an issue, what are the parties realistic incomes and expenses?
  • If you or your spouse own a small business, do you have the records necessary to demonstrate the income earned from this business?
  • Have you put together a list of marital assets and debts?
  • What is your budget for attorney's fees or is there a source which can be used to pay for those fees?

What is a Protective Order and How Serious Should I Take One?

In theory, Protective Orders are Court orders which are obtained by a party who is in fear of immediate physical abuse by a spouse or cohabitant. In reality, however, Protective Orders are almost exclusively used to obtain an upper-hand in either divorce or child custody litigation. Protective Orders do not follow the normal litigation process. An initial Protective Order is obtained without the knowledge or consent of the spouse or live-in significant other. If you have been served with a Protective Order, don't blow it off or treat it as unimportant. The violation of a Protective Order can result in you landing in jail or having supervised visitation (parent-time) with your children. Contact T.R. Spencer Law Office immediately for an appointment if you have been served with a Protective Order.

What is Grandparent Visitation?

In Utah, as well as in other states, grandparents have an independent right to visit with their grandchildren, so long as they meet the requirements specified in Utah Code Ann. §30-5-2. One of our founding partners, Terry R. Spencer, drafted and passed the grandparent Visitation Statute while serving in the Utah State Senate. This statute was weakened by the 2013 Jones decision, so it is important to discuss your unique circumstances with one of our attorneys before you proceed to enforce your grandparent visitation rights.

Business Law

Unless you have been there before, no one understands how exciting, yet difficult forming a new business entity can be. Many of the decisions made at the time of business formation can have a significant impact on the ultimate success of the business venture. Thus, it is very important to weigh the potential short-run and long-run impacts of these initial decisions.

What Business Services Does T.R. Spencer Law Office Provide?

Within our business practice team, T.R. Spencer Law Office, provides the following business services:
  • Business Entity Formation (corporations, limited liability companies and partnerships)
  • Contract Preparation and Negotiation (joint venture agreements, labor and employment agreements, construction agreements, operating agreements, subsidiary agreements, supplier agreements, rental leases, corporate finance agreements, and most other business agreements)
  • Regulatory Compliance Plans
  • Licensure and Permitting Matters
  • Mediation, arbitration or litigation of business disputes

What if I Want Only Limited Assistance?

Over the past several years, we have found that different entrepreneurs want different levels of involvement from their attorneys and business consultants. Depending on your needs, T.R. Spencer Law Office can help you get started and then provided legal and business advice only when needed, or we can be fully integrated into your business plan and provide regularly on-going advice.

Why Should I Use TR Spencer Law Office?

At T.R Spencer Law Office, we have brought together attorneys with decades of experience in diverse backgrounds such as real estate, financial services, advertising and insurance to assist entrepreneurs who are seeking to establish or expend their business operations in Utah and/or surrounding states. This experience allows our attorneys and business consultants to develop multi-disciplinary solutions to client matters.

Elder Law

Elder Law includes the following types of legal matters:
  • Estate Planning (Wills, Trusts, Living Wills, Powers of Attorney)
  • Probate Matters (Guardianships, Conservatorships, Estate Administration)
  • Family Limited Partnerships
  • Special Needs Trusts
  • Real Estate
  • Life Insurance

Estate Planning

When someone passes away, his or her property must somehow pass to another person. In the United States, any competent adult has the right to choose the manner in which his or her assets are distributed after his or her passing. (The main exception to this general rule involves what is called a spousal right of election which disallows the complete disinheritance of a spouse in most states.) A proper estate plan also involves strategies to minimize potential estate taxes and settlement costs as well as to coordinate what would happen with your home, your investments, your business, your life insurance, your employee benefits (such as a 401K plan), and other property in the event of death or disability. On the personal side, a good estate plan should include directions to carry out your wishes regarding health care matters, so that if ever you are unable to give the directions yourself, someone you know and trust can do that for you.

What Assets Does my Estate Include?

Your estate is simply everything that you own, anywhere in the world, including:
  • Your home or any other real estate that you own
  • Your business
  • Your share of any joint accounts
  • The full value of your retirement accounts
  • Any life insurance policies that you own
  • Any property owned by a Trust, over which you have a significant control

What Estate Planning Documents Should I have to in Order to Address my Property and Loved Ones?

A comprehensive estate plan should include the following documents, prepared by an attorney based on in-depth counseling with you, which takes into account your particular family and financial situation: a Trust, a Will, various Powers of Attorney, and asset transfer documents, such as quitclaim deeds. Each of these documents are discussed individually herein.

What Types of Issues Can Be Addressed by an Overall Estate Plan?

It is often said that an estate plan addresses "dead people and their things." But an estate plan can and should include much more. An estate plan can address care for the decedent's living minor children, and the decedent’s living spouse. The totality of issues you may want to address in your estate planning documents should be discussed with your estate planning attorney during your initial meeting, so that all of your wishes can be known and properly addressed.

Why Choose T.R. Spencer Law Office to Create Your Estate Plan?

You would not select medical doctor or a dentist without knowing something about the experience that professional could bring in solving your medical or dental problem, would you? The same can be said for an attorney. Experience is key. Attorneys in this office have been serving clients in selected areas of law for more than twenty-three years. This level of experience gives you "battle tested" skills when it comes to estate planning or litigation involving a previous completed estate plan. Give us a call and let us discuss how we can best address your unique estate concerns.

Why is it Important to Establish an Estate Plan?

Sadly, many individuals don’t engage in formal estate planning because they think that they don't have “a lot of assets” or mistakenly believe that their assets will be automatically shared among their children upon passing. If you don’t make proper legal arrangements for the management of your assets and affairs after your passing, the state’s intestacy laws will take over upon your death or incapacity. This often results in the wrong people getting your assets as well as higher estate taxes.

If you pass away without establishing an estate plan, your estate will undergo probate, a public, court-supervised proceeding. Probate can be expensive and tie up the assets of the deceased for a prolonged period before beneficiaries can receive them. (This firm has been involved in several of these types of cases over the past few years.) Even worse, your failure to outline your intentions through proper estate planning can tear apart your family as each person maneuvers to be appointed with the authority to manage your affairs. Further, it is not unusual for bitter family feuds to ensue over modest sums of money or a family heirloom. As an example, this office was involved in a case between a mother and daughter over the ownership of a used kitchen table and set of chairs owned by a deceased family member.

If I Transfer Title to My Real Property to My Revocable Living Trust Can The Bank Accelerate My Mortgage?

Federal law prohibits financial institutions from calling or accelerating your loan when you transfer property to your Revocable Living Trust as long as you continue to live in that home. The only exception to the federal law, enacted as part of the 1982 Garn-St. Germain Act, is that it does not provide for such protection for residential real estate with more than five dwelling units.