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.