As family law attorneys in the Denver area, the lawyers at Plog & Stein are asked many questions on a daily basis. A fairly common subject raised by both current and potential clients is mediation. The questions we are asked vary and can be as simple as "what is mediation?" The reality is that though most people are familiar with the term, there are many misconceptions about mediation, how mediation ties into divorce and custody cases, the role of the mediator, and the end result of the process. As a large percentage of the Denver area metropolitan courts require mediation, our attorneys assist our clients through the process on a regular basis.
The first step in understanding mediation is knowing what exactly mediation is and what it entails. Mediation is a process by which two parties to a case meet with a neutral, third person, whose sole function is to assist them in arriving at an agreement. The mediation process will generally entail the parties meeting with the mediator together, or in separate rooms, letting the mediator know each's position on whatever issues need to be addressed, and then letting the mediator do his or her work in terms of trying to find compromise or middle ground between them. If the parties are able to find that common ground, the next step is generally to have the mediator, or the attorneys, put the agreement down in writing, preferably in a legally cognizable format, for signatures and submission to the court. Though this explanation is somewhat simplistic, it is an accurate representation of what mediation is and how it is conducted.
Beyond explanation of what mediation is, or entails, there are many finer points that the general public is just not aware of. Below, I will convey those finer points with the hope that a broader understanding is obtained by the reader.
1. Mediation is not a replacement for the court process. Often times, people will ask whether they can go to mediation in lieu of filing a court case. Mediation can be conducted before a case is filed, or during the court process. However, for any agreements arrived at in mediation to be binding and enforceable, a court case will still need to be filed. Thus, parties to a divorce may wish to mediate prior to filing a case, but will ultimately need to get that case filed before any agreements can become enforceable court orders. There is nothing precluding people from mediating prior to the filing of a case and submitting their agreement(s) with the initial filing. Generally, mediation occurs after a case is filed.