A. Divorce Mediation - Defined
Mediation is a process of assisted negotiation based on the principle of informed decision-making.
In mediation, the participants make their own decisions based on sufficient legal information and knowledge.
Mediation does not impose any decisions. In contrast, courts and arbitrators impose decisions.
B. Necessity of Mediation’s in Family Law
In almost all cases, mediation will be required by the court.
Under the Colorado court rules, judges may order the parties in a family law dispute to attend mediation prior to a formal hearing or trial. The reason is that courts know that settlements obtained in mediation have better results than what will be determined by the court.
Therefore, it is a wise practice to begin with mediation, rather than spend thousands of dollars in attorney fees and several months of time engaging in a dispute before going to mediation.
Also, Colorado ethics rules for attorneys require that attorneys tell their clients that there are alternative methods of dispute resolution, such as mediation, rather than pursue traditional litigation. CRPR 2.1. But few attorneys do this.
C. The Role of a Divorce Mediator
A mediator is a neutral third party who helps both parties negotiate a complete settlement of all issues. The mediator does not represent either party. The mediator does not decide for you. Instead, you retain the power to decide (instead of the court) and you control the process.
An experienced family law mediator can often complete a mediation in 4-8 hours. Some complex cases which include outside experts such as investigators and business valuation experts may take longer. However, the typical cost of a mediation is about 10% of the cost of each party hiring a lawyer and proceeding through the various steps to get to a court hearing.
The easiest, least expensive, and fastest method of resolving divorce and any other family law dispute is to hire an independent mediator.
D. The Advantages of Mediation
One of the greatest benefits of a mediation is that parenting and other family relationships are preserved. Family law cases can be resolved with little cost and very quickly.
Family law mediation can be a valuable option because it can:
1. Reduce the economic and emotional costs associated with family disputes. The cost of mediation is very small, compared to a litigated case decided by the Court;
2. Increase the understanding and knowledge base of each participant;
3. Allow the participants to retain control over their decision-making;
4. Increase communication between the participants; and
5. Promote the best-interests of the children as well as all family members.
Almost all disputes have a predictable end result. Everyone wins if they get to that result as quick as possible.
Traditional litigation often costs more than 10 times as much in legal fees as does mediation. With poorer end results. Family relationships are often irreparably damaged on account of the mistakes made in litigation. Avoid it if you can. But, be prepared.
E. When Mediation Does Not Work
Mediation should work in all cases, except where:
1. There is misrepresentation or nondisclosure of important facts, such as income or assets; or
2. There is an unbalance of power. Such as financial resources to hire an attorney or where one of the parties has little choice except to accept whatever is offered by the other party. Or where one party thinks that they have the stronger position if they go to court; or
3. An unwillingness to participate or take a position.
F. The Worst Alternative to Mediation
Unless families can make their own decisions, the Court will make the decisions.
However, the Court will not be able to spend the time to thoroughly investigate the facts and circumstances of each issue. Rarely do attorneys for the husband and wife have enough time to properly present the facts.
Accordingly, families who cannot make their own decisions often end up with Court Orders which are not in the best interests of all concerned. In part because the Court does not have all of the relevant information.
Don't let the Court handle your responsibilities for you. It is not in your best interest.
G. The Best Approach
A divorcing couple should be involved in a process of mediation. But probably not with a non-attorney mediator, unless both Husband and Wife are represented by their attorneys. If both parties are represented, then sometimes a non-attorney mediator is the best option.
Use an attorney who will keep you informed as to the law and the application of the law to your facts and who attempts to resolve your differences. Most disputes are based on false information. In family law cases, disputes account for most, if not all, of any attorney fees over about $1,500. Stay out of the dispute process as much as possible.
Make sure that your attorney communicates with you in writing. The reason is that you want to make sure that you understand what you are being told. Also, you should document what your attorney is telling you. This is also a way to prevent your attorney from charging more fees by dragging out a dispute based on improper advice (which does happen.)
Also, most of the local Judges are providing "mediation help" by requiring status conferences as a means to resolve disputes. At those status conferences, the Judge meets with the parties and can straighten out anyone who is taking a position which is inconsistent with the law. 10 minute telephone conferences with the Judge can often be scheduled as needed. Involve your Judge. The cost by the Judge is $0.
Further, other than the schedule for parenting time, valuation of small business interests, and the division of personal property, today there is little to dispute. The end result in a family law case is fairly predictable.
For more information visit www.MediationPlan.com. There you can see our reduced mediation rate for the first two hours of court-ordered mandatory mediation ($50 per party for the two hours.)
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