Making the decision to file for divorce can be scary and often presents many questions for both spouses. It is a common misconception that the only way to divorce your spouse is through litigation. While litigation may be necessary in your case to protect your interests, many families reach complete or partial resolution of their family law case outside of Court.
What is Mediation?
In Colorado, mediation is subject to the Colorado Dispute Resolution Act, C.R.S. 13-22-301, et seq. During the process, a mediator facilitates negotiations between parties. While mediators are oftentimes lawyers, they do not represent either party and cannot offer legal advice. The mediator is without decision-making authority, but can provide the parties with neutral, problem-solving suggestions to facilitate compromise and agreement. If you reach a full agreement in mediation, the judge will not make any decisions in your family law case. Instead, once you file your agreement with the Court, that becomes the court’s order.
When do I Mediate?
If this is not your first time involved with the Domestic Relations Court, and if your case is not new, you may have an order or agreement that requires you to mediate before you file anything with the Court. If you do not know whether this requirement exists in your orders, you should consult a family law attorney who can help you explore your post-decree options.
If your case is new, you will receive orders that outline the parties’ responsibilities and obligations to the court and to one another until your family law case has been fully resolved. This will include an order to mediate before going in front of a judge.
Even though the court orders that mediation occurs, there are many aspects of mediation that you still get to choose. You can choose to mediate with someone through the Office of Dispute Resolution, or you can choose to mediate with a private mediator. No matter which mediator you choose, you will be required to file a Certificate of Mediation/ADR Compliance with the court. With so many mediators to choose from, it’s common for parties to feel overwhelmed by the selection process.
At GEM Family Law, we understand the significance of mediation to you and to your family. It is an expense to you, and, if you are hopeful that you can resolve your divorce or child custody case without going to court, then it impacts your family. Having represented clients throughout the Denver metro area, Front Range and beyond, our office of skilled attorneys can help recommend a mediator who will best suite your family’s unique needs.
What are the benefits of Mediation?
Privacy. When you go to court to testify in hearings for your divorce or parenting time disputes, whatever you say about your spouse or family will likely become public record. Parties often feel vulnerable and embarrassed that the most intimate details of their lives can be made public for anyone to hear or read.
With mediation, however, everything the parties and mediator discuss is confidential, and the mediator cannot be called to testify at trial. In divorces, this means that you and your soon-to-be ex can freely discuss all the issues in your marriage without fear that your statements may be used against you by family, friends or co-workers.
Creativity. In addition to privacy, mediation allows you to find creative solutions specifically tailored to your family’s circumstances that might not otherwise be available in Court. For example, C.R.S. 14-10-114 outlines the criteria court’s use when calculating the amount and duration of spousal maintenance (formerly “alimony”). Depending on your family’s gross monthly income and the duration of your marriage, C.R.S. 14-10-114(3)(e) creates an advisory formula which judges use to determine how long one party will be required to pay maintenance to their former spouse. Under the normal maintenance guidelines, the amount and duration of spousal maintenance can be modified only upon proving that a parties’ circumstances have significantly changed which warrant modification. At mediation, parties can agree to “contractual and non-modifiable maintenance,” which, as it sounds, means the maintenance obligation is fixed for a certain period of time.
For parties with children, mediation offers a unique opportunity to focus negotiations on co-parenting and implementing a parenting plan that suits your children’s best interests. For instance, parties often benefit by agreeing to hire a Parenting Coordinator/Decision Maker (“PC/DM”), to coordinate and make decisions for the parties. Rather than having a judge make important family decisions, a PC/DM works intimately with the parties to understand the goals and concerns of each party. As a result, many clients resolve their disputes with the confidence that the PC/DM made his or her decision after allowing each party to truly be heard. A Court can only appoint a PC/DM if there is an agreement between the parties.
Future agreement to keep things out of court. Finally, we have all heard of that family member or friend who seems to be constantly fighting with their ex-partner. Year after year, they are back in court, spending thousands of dollars on legal fees when that money would be better spent on their children. Wouldn’t it be nice to have peace of mind that your ex cannot just take you back to court over every minor grievance? In mediation, you will have the opportunity to discuss how you would like for future disputes to be resolved in your case.
Cost. While the actual cost of mediation can vary, depending on the mediator you select, the length of your mediation, and whether or not you have an attorney with you at mediation, there are huge costs that are always associated with a going in front of a judge. First, there is the tangible monetary cost of going to court with your attorney. Your attorney will likely spend hours preparing for each our that they are scheduled to be in Court, so that they can expertly advocate for you in front of the Judge. You will then pay for the actual time that your attorney spends with you in Court. More significantly, there is the intangible cost of the loss of control, the loss of predictability, and the cost of “fighting” with your former partner and co-parent when you ask a judge to make decisions that impact the rest of your life and your family members’ respective lives.
Dignity. Mediation gives you the opportunity to resolve your case without “slinging mud” in court. While going in front of a judge cannot always be avoided in family law cases, trying to “win” or fearing “losing” when you are discussing the matter of your family can feel undignified and can be embarrassing. Mediation gives you the power to take control of your future and of your family’s future.
Do I need an attorney for Mediation?
No, but proceed with caution. If you have a family law case pending before the Court, an attorney can make sure that you have considered all of the potential pitfalls in any “deal” that is presented to you and can help you negotiate terms that protect you and your family. Keep in mind that, once you sign an agreement and it is filed with the Court, it becomes binding. It is much more difficult to “undo” an agreement than it is to reach a comprehensive and effective resolution to begin with.
Knowledge is power. When it comes to your family you don’t want to make critical decisions without knowing your rights and how your decisions may impact your life. At GEM Family Law our attorneys and staff have the knowledge you need to make informed decisions regarding the future of your family and can help you prepare for resolving your case either in mediation or in front of a judge.
Authored by: Tyler Lambert, Associate Attorney
Co-Authored by: Ashley Emerson, Partner