The Court requires parties in family law cases to attend mediation.
If you cannot resolve the case on your own, the Court will order you and the other party to attend mediation. If you cannot agree on a mediator, the Court offers mediation through its Office of Dispute Resolution (ODR). For domestic cases, ODR mediators must be qualified through 40 hours of mediation training, background check, experience and substantive knowledge in family law. Otherwise, Colorado does not regulate mediators. ODR mediators offer a relatively low-cost way to meet the Court’s mediation requirement.
If you choose an ODR mediator mainly because you think it’s the most inexpensive way to meet the mediation requirement, you may want to rethink that choice. While many ODR mediators will work hard to help resolve your case; looking at mediation as just another requirement that must be completed robs you of an opportunity to resolve your case without litigation. Some ODR mediators will only be able to offer limited, two-hour time slots where a private mediator will provide the time needed to reach agreements. Whether you have an ODR mediator or a private mediator, mediation gives you a chance to resolve your case on your terms.
Mediation Allows You to Have Control Over the Outcome
Mediation allows you to have control over the outcome and make your own decisions.
At the outset of mediation, it is difficult to determine whether the mediator will succeed in helping you and the other party reach agreements. You may not believe it possible to compromise with the other party for numerous reasons. The importance of trying to settle your case cannot be understated. If you cannot reach agreement, your only option is a contested hearing before the Court who has a very limited knowledge about what is important to you and what you’d be willing to compromise on.
Taking a case to hearing increases the cost – a lot. You and your attorney will spend hours of preparation to be ready to present the case to a judge or magistrate. If financial issues need decided, you will need to update your financial disclosures. You will need to identify, mark and file exhibits. You will need to decide what witnesses are needed and those witnesses will need to be prepared. You will need to prepare to answer questions and explain your position. You may need to respond to or send out discovery requests to obtain information to help prove your case. The financial cost will be significant. The time and stress it costs may not be worth it. Most importantly, you will lose the ability to make your own decisions by leaving it to a stranger to decide.
A Well Prepared Mediation Is Your Best Chance for Success
Mediation offers the chance to avoid all of those costs, leaving you in control of the outcome of your case. It is often said that a successful mediation leaves both parties unhappy. This is because both parties will need to give up something to reach a negotiated agreement.
Preparing well for mediation provides the best chance of success.
Negotiation does not mean surrender. The best approach to mediation is considering your priorities, then determining where you will and will not compromise. By identifying what is most important to you, it will be easier to avoid an impasse. Impasses in mediation occur when there is little chance of resolving a particular dispute, ending negotiations.
An impasse on a particular issue does not necessarily end mediation. It can make continuing negotiations more challenging due to both parties being frustrated. Sometimes, it is best to start mediation with issues that seem easier to negotiate. Agreements on some issues may create momentum to resolve others. After all, if you have reached agreements on all but a few issues, it seems more worthwhile to find a solution on the remaining disputes.
In an ideal mediation, parties reach agreements on all pending issues. However, this may not happen in your case. You have the option of resolving some but not all issues during mediation for later. The downside will be the need to proceed to a hearing to resolve the disputed issues. However, the time, energy and expense of preparing for a hearing on all the issues will be far less if some or (hopefully) most issues are already resolved. Whatever agreements you are able to reach in mediation will be reduced to writing and presented to the Court.
The Mediator’s Role
The mediator’s role as a neutral is to facilitate understandings, find middle ground, and reduce your agreements to a signed, written agreement.
The role of the mediator may include drafting the written Memorandum of Understanding (MOU) reflecting your agreements. Review any written MOU carefully, as it will likely be submitted to the Court to be made a Court order. Even if the MOU requires drafting additional documents for the Court, it will lock in the agreements reached during mediation.
The mediator is not just a scribe or a note passer. A good mediator should listen carefully and be able to identify your priorities and goals. The mediator will not provide you legal advice, but can give you some insight into the strengths and weaknesses of your case. The mediator should remain neutral – you should be treated fairly but the mediator is not your advocate. Instead, the mediator must remain neutral, focused on finding solutions that both parties can live with.
What the Court Will Know After Mediation
The solutions reflected in an MOU will be the only information the Court receives about mediation if it is successful. The Court will not admit evidence of settlement negotiations pursuant to Colorado Rule of Evidence 408 – meaning, things discussed during settlement can’t be used against you or your spouse in court. Furthermore, the mediator cannot be subpoenaed or forced to testify, concerning mediation. The policy behind these rules encourages parties to negotiate with the understanding that the content of those negotiations cannot be used as a litigation tool against them in court. That way, both parties are free to explore settlement possibilities that may not reflect what they ask the Court to do.
Even if mediation is unsuccessful, the only information provided to the Court is the fact that mediation occurred. Even though parties are expected to participate in mediation in good faith, that threshold is very low. If a party attends mediation, it will most likely be considered good faith participation. If you cannot resolve your case through mediation, it may give you some insight into how the other side views the case. You will also get some information concerning the strengths and weaknesses of your position. The process may also give you a better idea of specific requests you should make to the Court. Even a failed mediation is an information gathering session as it represents more than checking a box that mediation occurred. It is an opportunity and should be treated as the best way to have agency and a measure of control over your case.
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