The Denver area divorce and custody attorneys at Plog & Stein, P.C. are often asked about the topic of mediation. People ask us what mediation is, do they have to do it, how much does it cost, etc. Sometimes people also raise the issue of arbitration, which is different from mediation. Though to family law attorneys this subject may seem elementary, to many people it is not. We have even had people call our office believing that a child and family investigator appointed to their case is a "mediator." Thus, confusion exists.
In most divorce or custody cases in the Denver area, whether pre or post-decree, courts will require the parties to attend mediation. This also includes the parties being required to mediate when a modification, say visitation or child support, is sought. Mediation has become a much more commonplace requirement than it was a decade ago. Not all courts, but most, require mediation with each round of contested litigation. In one metro area court, the parties are often required to mediate twice, before a temporary orders hearing and then again before the final divorce hearing. The general presumption is that mediation will lead the parties to settlement, thereby alleviating the need for a hearing before the court. I believe it often times becomes just one more hurdles the parties must jump over prior to getting their day in court. If people want to settle they will. If not, they won't. That being said, I have seen some mediators work miracles on the most ugly of cases. Thus, I have not fully gone over to the dark side of cynicism.
Mediation is essentially an opportunity for the parties to try to work out their issues prior to a divorce, custody, or child support hearing. The mediator is a neutral third party trained to help facilitate agreements. The mediator cannot give legal advice or take sides. The mediation process is usually a back and forth with the mediator as he or she seeks to find common ground. Mediation is settlement discussions. As such, anything said in mediation is inadmissable in court. Additionally, your mediator cannot be called to testify in court as to the content of discussions. Thus, it is truly an opportunity for the parties to freely discuss issues. Often times, mediators will keep the parties in separate rooms, which I prefer. When in the same room, it is not uncommon to see the attorneys, this one included, writing down anything informative that the opposing party might say. Parties to a divorce or custody case should understand that they do not have to have attorneys present for mediation, even if there are attorneys on the case. It is not that uncommon for both parties and attorneys to agree that attorneys are not attending, particularly when you have two informed and intelligent parties. Of course your attorney will be happy to attend should you choose such.
When attending mediation, you are free to agree on all issues, or just some of them. Should agreements be reached, the mediator will most likely be willing to draft an agreement, generally called a memorandum of understanding. Once signed, most judges will view these agreements as binding. As such, I always inform my Denver are divorce and custody clients who chose to attend mediation without me that they should never sign an agreement unless they are 1,000% sure that they can live with it. Rather, I will tell them to say that in theory they believe there is an agreement, but that they want to run it by their attorney first. One does not want to get locked into something he or she is not fully ready to live with.
A significant factor of mediation is the cost. There are two routes people can go in the Denver metro area. Parties can choose to use a private mediator. The cost is generally going to be $150 to $300 per hour, split between the parties. There are several private mediators who I believe are truly gifted at getting the job done. In those instances in which the parties seem to be close to settlement and just need that final little push, I will recommend one of those mediators. One benefit of private mediators is that they are much more flexible with scheduling and can sometimes come to your attorneys office. On the downside, you do get some high priced mediators who are no more effective than the cheaper ones. The other route to go is to use the court mediation service. The 18th Judicial District (including Arapahoe and Douglas Counties) has a good mediation service, which generally costs $120 per hour, split between the parties. For the most part, these mediators are just as skilled as the private mediators. They just cost less. On the down side, scheduling can be more difficult and there is less flexibility in terms of how quickly you can get in. For the rest of the Denver area courts, people can use the state Office of Dispute Resolution, which provides the same services as offered in the 18th Judicial District for the rest of the state. Cost matters to people. If you have two attorneys also attending, let's say at $200 per hour each, and a mediator at $200 per hour, the parties are spending $600 per hour between them. Something to think about in terms of whom to use as a mediator and whether you want your attorney to attend.
Though mediation is generally required, courts should waive that requirement in instances in which one party has been the victim of domestic violence at the hands of the other. People can also seek the waiving of their mediation fees through the court service should they be deemed "indigent."
The family law attorneys at Plog & Stein are skilled and experienced at negotiating all aspects of a divorce, custody, or child support case. As we approach each case from a cost benefit standpoint, our attorneys are also adept at assessing what is the most financially prudent way of approaching your mediation requirement and what will be the most effective route for settlement. You know you have to mediate. How you do it is up to you. You may settle or you may not. You do have control in dictating the outcome and cost of your divorce or custody case, including as relates to the mediation process.