Mediation & Divorce
Jason A. Márquez, Colorado Family Law Attorney
In the majority of Colorado districts, the Court often orders a form of alternative dispute resolution before they will schedule a hearing on disputed issues. The most common form ordered is mediation. It can be a costly endeavor but if the parties’ are sincere about settling their disputed issues, it can be very productive. There are two primary concerns to addressed before scheduling mediation. First, who should be selected as a mediator? And second, what can I expect to accomplish through mediation?
In order to address these concerns, it may help to understand what mediation involves. Mediation generally includes deliberations that result in solutions that may or may not be accepted by the contending parties. A mediator will often make recommendations regarding proposed solutions. However, their recommendations are neither binding on the parties nor the Court. Mediators will draft agreements regarding any resolved issues and once signed by both parties, become binding.
Often times a mediator will make recommendations based upon their experience and knowledge. For example, a mediator may have an opinion based upon their expectations regarding how a particular Court or even a particular judge may rule on a disputed issue. Accordingly, it is often very important to choose a mediator who has the requisite experience and familiarity with the type of issues in dispute, whether they involve domestic violence, substance abuse, financial or any other issues.
Often times parties believe that mediation will be a futile endeavor. However, while the parties may be pessimistic about the outcome of mediation, there are some benefits to participation. For example, everything discussed with a mediator or with opposing parties during mediation is strictly confidential. Accordingly, a mediator generally cannot be called as a witness in a subsequent hearing. Therefore, the parties are able to speak openly and honestly about their concerns. In addition, the parties often become much more familiar with what the opposing party is looking for. Therefore, even though a resolution may not be reached, mediation often helps the parties determine the range of options to resolve disputed issues. Ultimately the parties may settle somewhere in the middle of the range or alternatively become more prepared to focus on the range in a subsequent contested hearing.
Family law attorneys work with a variety of mediators all over the state. Mediators are often practicing attorneys, retired judges, medical doctors, mental health or other types of professionals. Depending on the complexity of the issues, it is important to pick a professional with specific expertise regarding the disputed issues. While not true in every situation, often more expensive mediators help the parties resolve more issues. As Court dockets become increasingly overwhelmed, mediation is a very likely endeavor in all divorces to eliminate some of the burden on the Court.
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