The Ins and Outs of Mediation in a Family Law Matter

Divorce Mediation

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser — in fees, and expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough.” – Abraham Lincoln

As a Family Law Attorney in Colorado Springs, I completely agree with the words of President Lincoln. Litigation or a final hearing is not always the answer and this is why mediation offers a great opportunity to resolve case issues outside of going to a full-blown hearing.

Mediation – Things To Do Prior to Mediation

Make sure you pay the mediator before mediation. Make sure you know what time mediation is being held and where it is being held.

If you want to bring someone for support to mediation, check with your mediator to see if you can bring them. Most mediators will not allow anyone else at mediation except for the parties and their attorneys.

Mediation – The Basics

First, mediation is the chance for two parties to meet with a neutral third-party mediator to try to resolve the specific issues in their case. Generally, the mediator will put the parties in separate rooms. If you are represented by an attorney, your attorney will be in the room with you. I know on television, shows portray mediation in a setting where both parties are sitting directly across from each other with the mediator in between them. Honestly, I believe this is an exception and something that I rarely see in family law cases. In most cases, the two parties will not see each other during the mediation.

Next, the goal of mediation is to try and resolve all issues and come to full agreement. However, at mediation, the parties are under no obligation to come to agreement. If a party is under no obligation to come to an agreement, but the goal of mediation is to come to agreement, what outcomes are there at mediation?

In my experience, there are three possible outcomes at mediation: (1) the parties come to a full agreement on all issues; (2) the parties come to an agreement on some of the issues, but not all of the issues; and (3) the parties come to no agreement at all.  If the parties come to a full agreement, there is no need for a contested hearing. However, if there are any remaining contested issues, then those remaining issues will be heard in litigation at a final hearing.

One thing to remember is that the mediator is not your attorney. They cannot give you legal advice to the specifics of your case. If you have an attorney, they will give you legal advice during the mediation process.

If you have an attorney and need to discuss something in private with your attorney, you can request that the mediator step out of the room while you discuss the issue with your attorney. As you discuss issues with the mediator, if you do not want the mediator to tell or disclose something to the other party, just ask the mediator to keep that information in the room and not discuss it with the other side.

Under Colorado law, discussions held in mediation cannot be disclosed except in certain situations. The goal of doing this is to create an open and honest dialogue between the parties and the mediator that will not be used against them at a later date.

Colorado Revised Statue 13-22-307(2) states: Any party or the mediator or mediation organization in a mediator service proceeding or a dispute resolution proceeding shall not voluntarily disclose or through discovery or compulsory process be required to disclose any information concerning any mediation communication or any communication provided in confidence to the mediator or a mediation organization, unless and to the extent that:

a. All parties to the dispute resolution proceeding and the mediator consent in writing; or

b. The mediation communication reveals the intent to commit a felony, inflict bodily harm, or threaten the safety of a child under the age of eighteen years; or

c. The mediation communication is required by statute to be made public; or

d. Disclosure of the mediation communication is necessary and relevant to an action alleging willful or wanton misconduct of the mediator or mediation organization.

Generally, most family law mediations in and around the Colorado Springs area last two hours. I have had mediations that have been shorter than that because the parties are either too far apart on the issues or refuse to mediate in good faith. Alternatively, I have had mediations that have last over eight hours due to the complexity of the issues and the case and the desire of the parties to come to a resolution.

If you and the other party come to any sort of an agreement at mediation, the mediator will usually draft up a document called a Memorandum of Understanding (MOU).

Mediation – General Advice

Family Law cases are highly emotional for the parties. For this reason, I tell my clients to come to mediation with a positive attitude and an open mind. Parties need to listen to the mediator and the advice of their lawyer, if they have one.

When settlement offers start going back and forth, I tell my clients to not take offers from the other party as a personal attack or slight against them. The goal is to take that offer or proposal and analyze it and treat it as part of the process. Parties at mediation need to understand that they can accept, reject or make a counteroffer to any offer or proposal from the other party.

When the mediator is with the other party, use this time to process your thoughts. Talk to your attorney, if you have one, during this time. Review and process the proposals from the other side and come up with counteroffers if you do not agree with their offers.

Mediation – Final Thought

In my experience, most parties that come to agreement at mediation walk out somewhat unhappy because they did get exactly what they want. Therefore, a good mediated agreement is one where both sides gave something up and did not get exactly what they wanted. The positive of this is that the parties had control in deciding what they gave up and negotiated.

If you or someone you know has questions about a Family Law mediation in or around the Colorado Springs area, contact Springs Law Group to set up a free consultation. We would be more than happy to discuss your specific situation and help you.

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