By: Jessica A. Bryant
Whether an initial divorce case, initial custody case, or a request to modify a prior custody or support order, you will generally receive an order from the court requiring you to attend a mediation session before the final hearing. Mediation orders vary from county to county (for example, some counties require mediation before they will set your contested hearing, or even your first court appearance, whereas other counties just require mediation to be completed within a certain amount of time before the hearing).
However, one common requirement for mediation in every county is that parties must mediate “in good faith.” That requirement, though, is generally not defined anywhere in the order. Therefore, people often question exactly what it means to mediate in “good faith.” One very important thing to note is that good faith mediation does not mean you have to reach agreements. You are never required to reach an agreement at mediation. Mediation is a confidential process and if no agreements are reached all the mediator tells the court is that the parties appeared, mediated, and no agreements were reached.
There are several actions that could be considered trying to mediate in bad faith, which are as follows:
- Failing to provide any information to the other party before mediation: You will notice that most mediation orders contain a requirement to update financial disclosures within a certain amount of time before mediation and that, if financials are not updated, mediation could be cancelled. The point of mediation is to see if parties can resolve the issues in their case by agreement instead of having to go to a hearing to let the court decide. If there are financial issues on the table, it may be impossible to see if an agreement can be reached if financial disclosures have not be completed or updated because the other party may not be able to verify the financial status being discussed. Failure to comply with the requirement to provide and/or update financial disclosures before mediation could lead the other party to file a motion or other document with the court. They could try to claim that mediation either could not occur or was a waste of time due to insufficient information. In such motion, if mediation was still held, they could request reimbursement of mediation costs and/or attorney fees and costs to attend.
- Leaving mid-mediation: Generally, mediation is to be held for a two hour minimum, unless the mediator decides prior to that point that mediation is not effective and decides to end mediation. If a party in the early stages of mediation gets frustrated and decides to just leave, contrary to the wishes/advice of the mediator, that could be considered a bad faith move.
- Engaging in inappropriate behavior or language during mediation: Some mediators don’t mind if a party curses during mediation as an expression of frustration, so long as the other party is not in the same room. However, if mediation progresses to a point where both parties are in the same room, cursing, yelling or otherwise demeaning each other then the process is clearly ineffective and could be considered a bad faith move by the mediator.
Ultimately, the individual that will likely determine if mediation was conducted in bad faith is the mediator. Therefore, it is very important to read any paperwork, contracts or other information they provide detailing their expectations and to comply with any deadlines or ground rules the mediator sets forth. While it is always possible the other party may try to file a motion alleging bad faith, if the mediator’s compliance report indicates that the parties complied with the mediation requirement, it is likely the court will simply take the mediator’s word for it. Colorado family law attorneys know that courts are all about people trying to settle matters on their own before going to a hearing and that the appearance of being unwilling to negotiate in good faith could be detrimental to your case. Again, judges don’t expect you to come to agreements, but they do expect you to give settlement a valid shot.