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Mediation and Your Family Law Case

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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.

2. Mediators do not have power over the parties and do not make decisions. People often have the misconception that when they go to mediation they are entering into a process, much as a court hearing, in which they need to state their cases and persuade the mediatior, who will then make a decision. This is not true. The mediator has no power whatsoever to make decisions. The mediator does not need to be persuaded or impressed. The mediator does not take sides. When entering into mediation, the parties should be prepared to discuss their concerns, give some explanations, and state their positions, including their ranges or thresholds on the various issues. The mediator needs to be informed of the issues and positions so as to function effectively. Often times, the attorneys will jump in to state those positions in an efficient and succinct manner. Beyond the fact that the mediator has no power to make decisions, one must also keep in mind that the mediation process is confidential.

3. Mediation is confidential and that which is said in mediation is inadmissible in court. At the outset of mediation, the mediator will explain to the parties, whether they are with their attorneys or not, that the process is confidential. The mediator will also explain that he or she can only discuss with the other side that which you ask them to discuss. Thus, you may discuss 7 ideas with the mediator on how to resolve an issue, but only confer upon him or her the authority to take one idea to the other side. Without this confidentiality, there would be no faith or trust in the process. There would be no free flowing dialogue or sharing of ideas regarding settlement. In addition to confidentiality, that which is said in mediation is inadmissible in court, meaning your Denver divorce or custody judge will never hear about what went on. At the beginning, the mediator will explain that he or she cannot be called, or subpoenaed, to testify in court. Likewise, his or her notes cannot be obtained. The only thing the court should hear from the mediator is that the parties attended mediation and participated in good faith. Again, if courts were privy to what the parties said in mediation, most mediations sessions would proceed with utter silence.

4. If an agreement is reached and signed at mediation, most family law judges will view that agreement as being binding. Mediation usually occurs at a stage in a case in which the issues have already been presented to the court and opposing party, and after such time as financial disclosures have already been exchanged. As such, courts will likely take the position that parties signing an agreement at mediation, who have already been provided with the information necessary to make informed decisions, knew what they were doing and agreed to, or accepted, offers made in an informed and reasoned fashion. This is certainly not an absolute, but is a loose rule of thumb. In light of this supposition, it is important to remember not to sign that agreement unless you are 100%+ sure that you can live with the agreement. Having your attorney present, armed with his or her knowledge of the law and court system, can help get agreements done as part of the process, as opposed to after the fact. One must keep in mind that attending mediation creates no requirement to come to an agreement. The choice is up to each party. One must also keep in mind that failing to come to agreements will likely lead to a continuation of the litigation process. It should also be noted that parties are free to come to partial agreements. For example, there may be argument regarding custody, property, and child support in a divorce case. There is nothing that precludes the parties from coming to an agreement on the property issues and the custody issues, while reserving the issue of child support for future court hearing or agreement down the road.

5. Mediation is required in some, not all counties. In almost every divorce and custody case in Arapahoe County or Douglas County, the court will require mediation. This goes for cases pre-decree, meaning before the case is finished, as well as post-decree cases, such as a modification case. Likewise, the Denver and Boulder district courts often times, but not always, require mediation for cases, whether pre or post decree. However, Jefferson and Adams County do not generally mandate that mediation occur. Some judges do and some don’t. When there is a requirement to mediate, the courts will generally send out an order giving a deadline to get mediation set, a deadline to get it done, and the next step to take with the court should mediation not be succesful. If your court has issued a mediation order, you must follow it. Absent a good excuse for noncompliance, your case or motion could be dismissed if you fail to follow a mediation order. C.R.S. 13-22-311 does afford litigants the opportunity to request an exemption from the mediation proces
s is some instances, such as if there is credible evidence that domestic violence has occured. This issue does arise from time to time, but not often.

6. It does cost money to mediate. The cost of mediation will vary depending on the route the parties choose to take. Parties to a Denver custody or divorce case can choose to either use a private mediator, or they can use the state mediation service arranged through the Office of Dispute Resolution. The ODR handles mediation cases for all Colorado counties. When mediating through the ODR, the cost will generally be $120 per hour for the mediator, which will generally be split between the parties equally. Conversely, when utilizing a private mediator, the costs can range from as little as $100 per hour, up to $300 per hour or more, depending on the mediator used, his or her fees, and his or her level of experience. Each case is different. The parties’ income levels, the complexities in the case, and the liklihood of settlement should be factors for determining which type of mediator to use. Family law attorneys know that there are good mediators, both through ODR and in the private arena. The attorneys at Plog & Stein assess, with each case, which route is likely to lead to settlement and what is the most cost effective option. This will truly depend on the facts of the case and how feasible settlement is.

7. Not all mediators are created equally. There are good mediators and bad mediators. There are strong mediators and others who are somewhat wishy-washy. There are mediators who are efficient and mediators who are long winded. There are mediators who get the job done and mediators who seemingly just go through the motions. Your attorney will know which mediator will be a good fit for your case, from both a monetary, issues, and style standpoint. If time and money are going to be spent, finding the best fit possible does matter. One must keep in mind that successful mediation ultimately requires two parties desiring to get the case settled. As such, not all cases do settle and there are cases in which the best mediator cannot get the proverbial deal sealed. That being said, the more learned the mediator is in the field of family law, the better off the parties will be. Thus, it is important to make sure the mediator selected has specific family law knowledge. Our attorneys are keenly aware of who we believe gets the job done and what each case or situation calls for in terms of mediator selection.

8. Mediators do not give legal advice and do not take sides. Because mediators are not authorized to give legal advice and must remain neutral, parties to mediation should keep the mediator’s function in mind: reaching an agreement. As such, I would generally advise having your attorney attend mediation with you. In that scenario, you have someone their to seek advice, legal knowledge, or insights from as to how a court might view the issues, whether the proposed agreement legally fair and appropriate, etc. Again, the mediator cannot provide those insights. Your attorney can.

Set forth above are some of the basics of mediation and the mediation process. Mediation is not substitute for the court process, but certainly a part of it. Mediators are not attorneys representing the parties and are not charged with assessing and advising on what the right decisions are from a legal standpoint. Mediation can be an effective tool for resolving Colorado divorce, custody, and child support cases. The attorneys at Plog & Stein, P.C. are always willing to attend mediation with our clients. Whether mediaton ultimately proves fruitful depends on the willingness of the parties to settle. Depending upon which county your case is in, you have a reasonable chance of being required to go to mediation at some point. Now you can enter the process a little more informed.