February 2021
In Colorado the courts require the parties involved in family law cases to attend mediation with a neutral mediator before a hearing for final or permanent orders takes place. This article will discuss what mediation is—and is not—and the process as it is used in family law cases in Colorado.
What Is Mediation?
Mediation is a process where the parties involved in a dispute meet with a trained, neutral mediator to discuss their dispute and try to settle some or all of the issues in their dispute.
Mediation is sometimes referred to as “alternative dispute resolution” or “ADR”. A statute in Colorado called The Dispute Resolution Act governs the process for mediation. This law also establishes an Office of Dispute Resolution in Colorado. Most judicial districts in Colorado have a local Office of Dispute Resolution.
Mediation might occur even when there is no pending case in court. Many contracts require the parties to attend either mediation or arbitration before they can go to court.
Mediation occurs in all kinds of cases, including criminal, civil and family law.
Why Do We Have to Go to Mediation?
In Colorado, the Courts require the parties in almost all family cases to attend mediation before the parties can have a contested hearing before a judge. There are some exceptions if there is domestic violence or if a party can provide a compelling reason why mediation should not take place.
The Courts favor mediation because it is well established that the people who are closest to the dispute—spouses and parents– usually are in a far better position to craft a solution to the dispute than a judge who is a stranger to them and has limited information about them. This is especially true in family law cases involving children and the division of property and debt. Over time the Courts have come to understand that the parties know far more about their circumstances and about what will work for them and their children than a judge can know after a hearing lasting for a few hours.
In Colorado, the vast majority of cases do in fact settle before they get to a contested court hearing.
When Should We Go to Mediation?
The timing of the mediation is up to the parties. Some people may choose to work with a mediator even before their divorce case is filed. Some will attend mediation early in the case because they agree on most issues and their situation is not complicated. Sometimes it may be better to wait until everyone has enough information about the issues in the case, i.e. appraisals on a house, or a business valuation, or a custody evaluation for the children.
Do I Need to Have a Lawyer for Mediation?
You are not required to have an attorney represent you at any stages of a family law case. The choice to retain an attorney is up to each individual. Experienced family law attorneys can provide you with advice on what is in your best interests and how to navigate the court system. Consulting with an experienced family law attorney is usually a good idea but it is not required.
What is the Role of the Mediator?
The mediator is a neutral person, meaning that he or she is not involved in the dispute and has no stake in the outcome of the case. Some private mediators are attorneys or retired judges. Some mediators may be non-attorneys but have gone through training. The mediators with the state Office of Dispute resolution include both lawyers and non-lawyers.
Some mediators will meet with both parties in the same room if the parties agree to be together. Some mediators will have each party (and their attorney if they have one) in separate rooms and then shuttle between the rooms.
The mediator’s job is to assist the parties in identifying what issues are in dispute and then to work with them to explore possible settlement of those issues. The mediator will facilitate the discussion and keep the parties focused on the issues. The mediator will set the ground rules, i.e., parties will be respectful and courteous, no interrupting, be open to suggestions for how to resolve something, be open to compromise.
A mediator who has a lot of experience in family law cases may offer some ideas or suggestions for a compromise. However, a mediator has no power over the parties and is not a judge in the case. Suggestions offered by a mediator are just suggestions and the parties can consider them or reject them.
Experienced mediators may comment on the strength or weakness of a given position of a party. This does not mean the mediator is picking sides. Having an experienced mediator comment can help a party understand what risks he or she is taking with a given position. Again, the mediator has no power or authority over the case so the parties can consider the comments or reject them.
A mediator will not give either party legal advice. That is the role of the attorneys in the case.
Does the Mediator Have to be Licensed?
Colorado does not license mediators. However, it is always a good idea to inquire about the training and experience of a proposed mediator.
What Should I Do to Prepare for Mediation?
You should view mediation as your best opportunity to control the outcome of the case. Therefore, it is wise to plan an agenda for the issues that you wish to discuss and be prepared to present your ideas for resolving those issues.
If you have an attorney it is wise to meet with your attorney before the mediation to discuss the issues and your proposals. Keep in mind that the other side may see things differently than you so be ready to consider what the other side may propose.
For property and debt issues it is a good idea to have an accurate and current summary of what the assets and debts are. Many people will prepare a spreadsheet that reflects the assets, what the values are and what debt there is. If you don’t know a value or cannot agree on a value for an asset then be ready to discuss how to arrive at a value, i.e., hire an appraiser for real estate or a business, get a blue book value on cars, update bank or investment statements so current values are discussed, etc.
For maintenance and child support issues, have information ready to show what your income and the income of the other party is, i.e., tax returns and paystubs are most helpful. Also, have a good idea of what your budget is for your household, i.e,, what are your bills each month for housing, transportation, food, insurance, health care, kids’ expenses, clothing, entertainment, etc.
For child related issues, be prepared to discuss how you will make decisions for your children and what the parenting time schedule will look like. Be prepared to discuss the weekly schedule as well as the holidays and the summer. If you have a dispute over the children be prepared to discuss the appointment of a child and family investigator (CFI) or a parental responsibilities evaluator (PRE).
Don’t walk into the mediation without a plan.
Have realistic goals. Your attorney can help you set goals that are achievable.
No one gets everything they want, so be open to compromise. Cases settle when people compromise. “Take it or leave It” offers rarely result in a settlement.
How Do We Select a Mediator?
If you chose to use the Office of Dispute Resolution, the mediator will be assigned from one of the mediators on their staff. If you wish to hire a private mediator you can conduct a Google search to find one in your area. It is wise to select a mediator who has experience in family law cases and who understands the legal issues involved and who can work with people in family law cases that are often highly emotional. If you have an attorney he or she will be able to recommend a good mediator.
What Happens During Mediation?
The process of mediation is informal. The mediator may ask you or your attorney to provide some advance information about the case in the form of a “confidential settlement statement”. This statement gives the mediator some basic information about the parties and the issues and may provide the position of the party on the issues. Submitting a confidential settlement statement is entirely optional but it helps the mediator “hit the ground running” when the session begins.
Mediation may be in person in an office or, due to the pandemic, by Zoom or even by phone. Pre-pandemic, the mediations conducted by the Office of Dispute Resolution took place at the courthouse. All methods are acceptable and generally will depend on the comfort level and health concerns of the parties.
Most mediations require a half day or full day to be productive. Mediations set for an hour or two may not even scratch the surface of the case.
If the parties are not in high conflict they may agree to be in the same room, or the same Zoom main room. However, most mediations occur with the parties (and their attorneys) in separate rooms or in “break out rooms” on Zoom. This separation of the parties is common because it allows the parties to be frank and open with their position and allows them to brainstorm settlement options without the other side criticizing them. It allows the parties to get advice from their attorney in a confidential manner.
If the parties are in the same room the mediator will moderate the discussion and keep the parties on task and clarify the issues and the settlement proposals. If the parties are separated, the mediator will shuttle between the rooms and carry information, updates on the issues to be discussed and settlement proposals. Good mediators keep extensive notes and convey only what each party authorizes him or her to convey.
Good mediators will keep the parties engaged in the process and encourage them to think about compromises in order to avoid an impasse.
If agreements are reached on some or all of the issues the mediator may draft a memorandum of agreement for the parties to review and sign.
When the mediation is completed the mediator will provide the parties with a certificate to confirm that the parties attended the mediation as required. That certificate can be filed with the Court if the Court requires proof of mediation.
What Does It Mean that Mediation is “Confidential”?
By law, the discussions in mediation are confidential. That means that no one may inform the Court about what the parties discussed during mediation. The only thing the Court will know is that the parties attended the session.
The purpose of this rule is to encourage the parties to take mediation seriously and make good faith offers of settlement, but if the offer is rejected the party is not stuck with it. Mediation provides a “safe harbor” for parties to explore creative alternatives and settlement options without fear that what they suggest will come back to haunt them in the courtroom. For example, a spouse may offer to buy out the other spouse on the house for $10,000 more than the fair market value because the first spouse wants to be done and avoid the uncertainty and cost of going to court. If that offer is rejected, neither party can bring it up in court and the first spouse can ask the Court to simply use the fair market value of the house for the buyout.
The exception to this is a signed written agreement. If the parties are able to reach agreements and put them in writing and sign them, that memorandum can be filed with the Court and the Court can be asked to approve it as the agreement of the parties. Such a memorandum might cover one or two issues or it may cover all issues. It must be signed by the parties (and their attorneys if they are represented) in order for the Court to be able to consider it.
What Happens if We Don’t Agree on Some Things… or Anything?
Any issues that are not resolved will be submitted to the Court for a decision after a final orders hearing.
How Much Does Mediation Cost?
The fees of the mediator will vary depending on his or her experience and qualifications. Retired judges often are more expensive because of their extensive experience. Most mediators will charge from $100 an hour up to $400 an hour. The fees in family law cases are usually split equally or paid from marital funds.
Can We Go Back to Mediation More Than Once?
Yes, you can attend as many mediation sessions as you wish if you think it will be productive. Courts encourage parties to settle their cases, so if mediation will help settle the case and both sides agree the Court will extend court dates in order to give the parties time to mediate.
How is Mediation Different from Arbitration?
A mediator is a neutral who has no decision making authority. A mediator cannot enter any orders or force a party to do something. Mediation is mandatory for family law cases in Colorado.
Arbitration can only be done by agreement of both parties. An arbitrator is also a neutral but the parties have agreed to give the arbitrator decision making authority over some or all of the issues in the case. An arbitrator is basically a private judge. An arbitrator will conduct a hearing on the disputed issues in the case and enter an arbitration award, which has the same effect as a court order. An arbitrator can also enter awards directing how the case will proceed and set timelines and rule on motions filed by the parties.
A mediator-arbitrator performs both roles. Mediation will be attempted first to see if the parties can reach agreements. If mediation is not successful, or only partially successful, then the mediator will resolve the remaining issues as an arbitrator.
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