A lot of clients that come in talk about how to reach agreements in a good way to avoid going to court. Many people feel and probably rightly so that the court system is not a very good place to air out your differences when you’re going through a divorce or dealing with the issues of your children and parenting time. I want to talk to you a little bit about effective ways to resolve your differences without having to go to court.
One of the biggest reasons that I can give to parents and to anyone that’s going through a divorce or a custody case is that, if you go to court it is a public proceeding. It means that there is no privacy. It’s not confidential in any way. When you go through that process, a judge will make all the decisions, effectively meaning that you’ve lost all control over the outcome of your case because you have not been able to enter into any kind of agreement with your partner or your spouse and you’ve turned this role over to the judge.
Judges are used to doing this. This is their job. They kind of view these things in a black and white decision making role. There’s really not much room for emotion in a divorce or custody proceeding. A judge is going to say, “I’m going to make a ruling that I think is best. I’ve given you the opportunity to work out your differences with your spouse, but you haven’t been able to do that, so you’ve turned it over to me as the judge, and now I’m going to make the decision.”
There are different tools that are available to resolving these kinds of cases, custody, divorce, legal separation. One of them is called the settlement conference. A settlement conference is usually conducted between the parties in a room where everybody sits down and exchanges ideas in a civilized manner to see if the parties can come up with an agreement. Keep in mind that any agreement that you reach in a divorce or custody action must come after the parties have exchanged essential financial information. If the parties are able to resolve their differences in a settlement conference, there are appropriate documents that need to be prepared that the parties have to sign before it ever gets to the judge.
Another way is through mediation. Mediation means that there is a qualified experienced professional who is called a ‘neutral’. ‘Neutral’ means he doesn’t have any interest in who wins or which side is better. He’s supposed to be like the umpire in the baseball game. All he’s doing is calling balls and strikes. He or she is going to try to facilitate a settlement.
As an example, last week I was in a mediation. We had a very experienced mediator. She practices here in town. She helped the parties in separate rooms, come up with a plan that would work for their children. As a result of that, the mediator prepared a written agreement that day. Everybody liked the agreement. They added their own language. They ultimately signed off on the mediation agreement and reached a settlement.
The last thing I want to talk to you about is arbitration, and what is arbitration. Arbitration means that as part of the mediation process, usually a neutral arbiter, once again someone with a lot of experience, could be a retired judge or somebody that’s acted in that role, helps the parties come up with an agreement. If there are things that the parties are unable to agree to, the arbiter makes the call, makes the decision, puts it in writing and that becomes binding on the parties. There are a lot of rules that are associated with arbitration so it’s always important to talk to an attorney before you go to arbitration or before you decide that that’s a way for you to resolve your case, so that you have a clear understanding of what’s at stake before you ever start.
TV shows and movies often dramatize the legal system, leading people to think that heated exchanges under oath on the witness stand are necessary to resolve every legal situation. While those depictions may reflect what happens in some high profile criminal proceedings, they do not accurately reflect options for resolving civil matters, including those that fall under Colorado Statutes. Continue reading “Mediation and Arbitration: An Overview” »
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