Mediation in Family Law and Divorce Cases
Mediation is a tool that is designed to encourage parties to a dispute, to resolve their differences, outside of a courtroom. The majority of Family Law and Divorce cases that are in the legal system, result in an amicable agreement. This should be good news to anyone about to get divorced and worried about the time and expense of a prolonged dispute. When mediations result in a settlement, the parties can sign and written document called, A Memorandum of Understanding, that would be enforceable and binding.
Mediation is conducted by a neutral third party. The parties may agree to use a mutually acceptable mediator, or they can request that the Office of Dispute Resolution (ODR) randomly select a mediator that works in the courthouse. A Mediator must be certified and have successfully completed a Mediation Training program recognized in the State of Colorado. Many mediators are former judges, who have spent the vast majority of their professional careers, making rulings on a variety of family law matters. Experienced former judges often times have their own mediation business, and can be contracted to serve as a mediator by agreement of the parties. When mediation is conducted, it takes place in either the courthouse or a private office, such as a law office or in the mediator’s office. Most mediators will conduct mediation by separating the parties into different rooms or conference rooms so that the parties do not confront each other and everyone is made to feel as comfortable and at ease, as possible. Being free to open up with a mediator and express your concerns in a non-threatening environment is a good way to resolve conflicts.
Mediation is a confidential proceeding. Testimony is not recorded and mediation is not open to the public. Neither party is called to testify as a witness, so no one is placed under oath, and neither party is permitted to call witnesses to testify on that party’s behalf. A mediation session is usually scheduled for a 2 hour time block, but can be longer if the parties agree. Since the mediator is “neutral” he or she will have no prior knowledge of the facts of any given case before mediation begins. A Mediator is not to take sides during the process or make arguments for or against either party. Both parties will usually contribute equally to the financial expense that is involved in paying the mediator fee. As an example, mediation usually costs each party $60 an hour, and that fee is paid directly to the mediator, as an expense or cost for the litigation. When an agreement is reached at mediation, it is always recommended that the agreement be reduced to writing and signed by the parties. In that way, the agreement becomes binding and enforceable in court. Since mediators and lawyers usually can predict what a judge will do in making rulings at a contested hearing, it is always a good idea to have a qualified and experienced lawyer with you during mediation
Because Mediation is an extremely worthwhile endeavor for both parties, I have found that when parties come to mediation, prepared, they can usually achieve success. Success at mediation means that the parties themselves took control over the possible outcome of their case and removed the element of “surprise” that comes from having a judge make certain rulings that order what is to take place. In order to be properly prepared, I think it is important to outline your goals and prioritize them. In this way, you can be prepared to go through your outline with the mediator and share your ideas of what you want to accomplish. On many occasions, I have heard judges say, how much they appreciate the fact that parties have taken the time to sit down and negotiate a settlement with the help of a mediator and took control over, or accepted ownership of their case. Here is a typical outline prepared by a client before we went to mediation:
- . Parenting:
- . I want to be the primary residential parent and have the children attend school in the School District where I live;
- . I will agree to joint decision making over all major decisions;
- . I will agree that the other parent should have parenting visits, every other weekend from Fridays to Monday mornings when school begins, alternating holidays of Christmas Day, Christmas Eve, Thanksgiving Day, July 4th, Labor Day, and that each parent have the children on either Father’s Day or Mother’s Day;
- . Each parent may have up to 2 weeks of annual uninterrupted vacation with the children, each and every year;
- . Neither parent may relocate outside the Colorado Springs metropolitan area or leave Colorado with the children on a permanent basis without either court order or an agreement signed and dated by both parties;
- . Reasonable phone, email and texting to the children during normal waking hours by both parents;
- . Neither parent will use any derogatory or demeaning language of any kind directed at the other parent in the presence of the children or allow any third party to do so.
- . I want Child Support pursuant to the Child Support guidelines, and those calculations show that the other parent has to pay $673 each month and keep the kid’s health insurance paid each month;
- . I want Spousal Maintenance of $1200 each month so that I can pay my bills;
- . I want 50% of all retirement accounts, savings, mutual funds and other accounts;
- . I want each of us to keep our own cars, the other side can have the motorcycle, and we will both be responsible for our own vehicle insurance;
- . I want to divide all of the household furnishings and Televisions and I have attached a list of all of the personal property;
- . I would like to sell the house and list it within a month, and divide any profits;
- . I want to keep the timeshare for me and the kids and I will pay the annual dues;
- . I will keep all debts and credit cards in my name, and the other party can keep the debts and credit cards in that person’s name;
Keep in mind, that if you are organized and can have a civilized discussion with the mediator about your goals and objectives, you can get the most of out of Mediation and hopefully save the time and money that would be incurred in having a trial before a judge.
For more information on Mediation and Arbitration please check out our blog about Mediation and Arbitration.
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