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Mediation in Divorce and Child Custody Cases

Mediation is required by most courts in Colorado divorce cases, as well as in support and child custody cases. Typically after someone files for divorce and notifies the other party, the first court date is set. At that first appearance, the court will often set a deadline for mediation to occur.

Mediation is an informal attempt to resolve your case. Being in court and in front of a judge is very formal, and there are many rules about what can be said, when, and by whom. There are also concerns about strict time requirements in most court hearings that may impact a person’s ability to cover everything they feel is important to a particular issue. Mediation is very different, in that there are no rules of evidence to be concerned with. It is simply an opportunity for both sides of a case to express their concerns and to try to come to an agreement.

If mediation does not result in new agreements, the parties have only lost the time and money involved in the process itself. Most statements and offers made in mediation are not admissible later in court. The idea behind this is to encourage parties to really stretch and try to resolve their cases without worrying about whether a certain offer or statements is going to be used against them later.

The general process of mediation is the same for most mediators. Parties receive instructions prior to the mediation appointment. These instructions usually include an agreement to mediate in good faith. When the parties arrive, they are often placed in separate rooms, with a mediator moving from room to room, attempting to negotiate a solution to the unresolved issues. Usually, mediators begin by encouraging each party to simply express their primary goals and concerns. Then the mediator will begin to suggest resolutions that may be acceptable to both sides and will convey these solutions along with any suggested by the parties until an agreement is reached.

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Parties to mediation should clarify a couple of points as early as possible. First, the parties or their attorneys should establish their intent to have attorneys present with them for mediation, as well as any other people who may need to be present to assist with resolution. Special permission may be required for anyone other than parties and their attorneys to attend. So it is helpful to clear this up well in advance of arriving to mediate. During the mediation session, most mediators prefer to hear directly from the parties as much as possible, rather than speaking only with attorneys, as is more common in a courtroom.

The second point that is important to clarify early on is how much of the casual conversation that occurs during mediation is going to be shared with the other side. When mediating in separate rooms, some mediators will feel free to share anything you tell them with the other party. Others will only disclose information you specifically authorize. Although mediation almost always requires an agreement signed by both parties that neither will attempt to call the mediator as a witness later in the case, it is a good idea to know exactly how much of your conversation will be disclosed to the other side during mediation and to monitor your conversation.

When all parties to a domestic case approach mediation with a good faith desire to resolve the issues that remain open, the resulting agreement will almost always save significant time and money. Even partial resolution of a case can save significant time, resources, and stress. Many people find the uncertainty associated with leaving decisions to judges to be one of the most stressful aspects of a divorce or child custody case. That is certainly understandable. Mediation is an opportunity to narrow the list of unresolved issues, and accordingly, reduce the uncertainty involved in your case. Like most aspects of family law, the total cost and duration of mediation are usually dependent on how much the parties can agree on. Of course, that means one party can hold up the process, frustrating the other side and often the court.

Good mediators are more than just messengers going between rooms. Ideally, mediators can suggest solutions outside those already considered by the parties and can open communication that was previously thought to be unproductive. But no amount of progress in mediation is useful if the parties later change their mind. Although unwritten agreements reached in mediation may be enforceable, the best practice is for both parties in mediation to draft and sign a memorandum of understanding. These memos record which agreements were reached in mediation and make enforcement by the courts more likely.

Our office often gets calls from people who are wondering whether they should file for divorce or attempt to mediate. The answer is usually that the court is going to require you to mediate anyway. Many courts will just require the parties to mediate again if they did so before filing a case.

If you are considering mediation, or are scheduled for mediation, you would very likely benefit from representation by an attorney focused on domestic practice. Call my office and schedule a consultation to see how I can help you.

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