Benefits of Mediation Arbitration

I’m going to talk to you a little bit about the concepts of mediation and/or mediation arbitration, and what is that.

First off, mediation is required in El Paso County when any contested family law matters are set for a hearing. In other words, the court requires that the parties attempt to mediate their disputes before they head off to a contested hearing, and oftentimes, I’ll go to a pretrial conference with a client, and the judge will ask, one of the very first things that judge will ask, is, “Has mediation been scheduled? Has it taken place? And what happened at mediation?” This gives the court some added information about the case. It tells the judge, did the parties engage in mediation to try to resolve their differences, and did they put some effort into discussing what the issues are before they headed to a hearing.
Mediation is conducted by a neutral third party, who’s not supposed to take sides, but is to take information back and forth between parties, to see if a case can be resolved. In El Paso County, there are lots of very fine private mediators, who will conduct the mediation in a law office or neutral setting, and there’s also the El Paso County Office of Dispute Resolution, which is in the basement of the El Paso County Courthouse, and you can find the Office of Dispute Resolution in counties all over the state of Colorado.

The other option that people have is to conduct what they call mediation arbitration. A lot of times, a mediation arbitration can be scheduled a lot faster than a final orders hearing or a court hearing with a judge. In a mediation arbitration, the parties must give specific consent, usually it’s in writing, and signed by the parties, that allows the mediator to arbitrate the case. This means that you’re giving the authority to the mediator, to act as an arbiter, if not all of the disputes can be agreed upon. In this way, your arbiter is going to act the same way as a judge.

The reason I like arbitration in a lot of cases is because it keeps everyone out of court. It allows people to sit in the comfort of a conference room in a law office somewhere and not have to be dressed up, not have to go to a public hearing in the courthouse, where the public is invited, not to be peppered by questions from the other side, but freely give input in a relaxed setting, that is going to be conducive to settling a case. And most of the time, most of the situations in a mediation arbitration, because of the fact that the parties have selected an experienced arbiter, cases settle and do not head to court. But if they do, the arbiter will have heard from both parties and made a decision just like a judge.

One distinction, in arbitration, there’s usually not an appeal process, meaning that unless certain guidelines are met, you’re not going to be able to appeal an arbitration decision that you did not like, which is contrary to what will happen if a judge makes a ruling at final orders. I have found that the cost savings to the client in either a mediation or a mediation arbitration can be significant.

Questions About Attorney Conduct

Lots of clients call here and ask questions about, “What do I do when I’ve had an attorney working on my case and the attorney is not returning my phone calls, not sending me email responses, and I have no idea what’s going on in my case?” It could be a divorce case, a legal separation, a child custody case, what have you.

My response to that is this. Whenever you’re hiring an attorney in any of these kinds of matters, you need to be comfortable with your lawyer, and you need to discuss, going into the case, how that lawyer operates. Is the lawyer going to return emails promptly? What happens if the lawyer is in court or mediation? How will I get my questions answered?

In this office, we offer a 24/7 phone line, and I have very experienced staff and a paralegal who’s been involved in family cases for many, many years, who will answer a lot of the questions that clients have while I’m in court or unavailable, and if you are not getting the proper service from your attorney, or your attorney is telling you what to do rather than you telling your attorney what you want to see happen, maybe it’s time to consider changing lawyers to someone you’re more comfortable with or can work with.

If you are in that situation and you are looking to hire an attorney to jump in and take over your case, remember to bring as many of the court documents with you when you see the new lawyer, so that that lawyer is not surprised by any of the litigation history or upcoming court dates.

How long does it take to get a Divorce In Colorado?

Lots of folks call our office and they ask, “How long is it going to take to get a divorce in Colorado?” Generally, divorce cases in Colorado are going to depend upon the jurisdiction that you’re in. If you’re in El Paso County, it’s probably within a timeframe of four to seven to eight months before you’ll be able to get a hearing on a contested divorce. Let me tell you what that is. A contested divorce or legal separation means that the parties do not have total agreements on all issues.

Basically, that means this. Under our law, if the parties have an agreement of all financial disputes, the division of property, debts, a spousal support, then they need to prepare a separation agreement in writing after financial disclosures are completed. If the parties do that and there are no children, they can easily obtain an uncontested dissolution of marriage hearing.

If the parties have children, the court is going to expect them to have a parenting plan in addition to a separation agreement that covers the children. This means to the court that all disputed issues have been resolved and the court will schedule an uncontested hearing. Uncontested hearing will allow you to get to court faster and will use up less time and money or expenses in attorney’s fees when all disputed issues are resolved.

I believe that everyone who’s involved in one of these processes with the stress that’s involved, both dealing with financial issues and the children, should always try to reach total agreements both with the financial disputes and the parenting disputes. That is something that I think that the courts recognize as well.

What Happens To 401k/Retirement Accounts In A Divorce?

I want to discuss with you what happens with a retirement account or a 401k account and how that may be involved in your divorce or legal separation or even in post-decree matter.

A post-decree matter means that you’ve already gone to court. You have had a judge enter a decree or a legal separation or a decree of dissolution of marriage, and in that decree of dissolution of marriage, one of the parties or both of the parties had IRAs and retirement counts or a 401k that had to be divided. And in a post-decree case, most often what we see is that somebody has not done what they’re supposed to do.

As an example, let’s say that IRA accounts were to be divided 50/50 in the divorce and husband had a $200,000 IRA account and he was supposed to give wife half, or 100,000 of that and he didn’t do that. And you want to go back to court to enforce those orders. That’s a post-decree issue.

In the typical divorce case, where there are 401k or retirement accounts, the court is going to divide those accounts down the middle. That’s pretty much what you can expect. Even though there is no law that says that the court has to divide everything 50/50, generally speaking, a marriage of any kind of length, four or five, six years or longer, a court is going to take into account who’s contributed to the 401k and whether or not that was a contribution made over the course of the marriage, and that’s how it’s going to be divided.

Modifying Parenting Time

I want to discuss with you motions to modify parenting time. One of the biggest issues in motions to modify parenting time occur when a parent, who is the primary parent, wishes to relocate with the children to another state. In the law, that kind of relocation is called removal and it takes the permission of a judge or the other parent in writing and a court order in order for relocation to occur. Now, in those situations what is required is that the parent who wishes to move away with the children has to file a motion with the court making the request for relocation and stating the reasonable grounds for the relocation.

In Colorado, the court cannot require a parent to live in Colorado or anywhere. It is the children that are under the control and jurisdiction, what they call continuing jurisdiction of the court. If a parent wishes to relocate because that parent got a great job in Chicago and wants to move out of Colorado with the children, that parent is going to need to establish what is the criteria for that relocation that would serve the best interest of the children. Things like family members being in Chicago, increased financial access, schools, education, health care, all those kinds of things are a factor. Of course, the other parent can make an argument that the relocation is not in the best interest of a child.

Effective Ways To Resolve Differences Without Going To Court

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.

Divorce Mediation: What is it and How Can it Help Me?

I want to talk to you about mediation and what mediation is, and how important mediation is in your case. Mediation is an informal proceeding in which the mediator is someone who is qualified and has a certain number of hours that they’ve taken in the mediation process. In mediation, usually what happens, is the mediator, who is a neutral third party who doesn’t know anything about your case, is going to go between two different conference rooms, the conference room where mother may be, or the wife, and the conference room where father or husband may be. Each one of the parties will have their lawyers present in those separate conference rooms.

Mediation is confidential, so it’s not taped and recorded. In the mediation process, the parties will have an opportunity to discuss with the mediator what they feel their legal issues and the outcomes that they want should be discussed, and the mediator will carry that information back and forth between the two rooms. There are certain things that you can do to be fully prepared for mediation. It’s always been my practice, that before mediation the client comes in, and we have a legal strategy meeting, to discuss what we want to see as an outcome.

If you are going to mediate a typical divorce case where there are children, then you’re going to be discussing all of the financial aspects of your case. Property, debts, house,cars, those kinds of things. On top of it, you’re going to be expected to mediate a parenting plan. A parenting plan that’s going to discuss how the parents are going to co-parent and share custody, visitation, holidays and decision-making with the children. There’s a lot of things that you can do to make sure that mediation is as powerful as you want it to be. My message is always the same to my clients, that mediation represents your last best opportunity to resolve your case in an amicable or friendly manner, before you get to the judge.

By the time you get to a judge, it’s too late. You can’t negotiate with a judge. A judge is there to hear the case and make a decision, so mediation is a very important proceeding in our family law courts. Many of our family law mediators will reduce a mediation agreement to writing. That means you’ll have an agreement from that moment that you reach an agreement in mediation, and you can avoid a costly time-consuming hearing in front of a judge when you reach an agreement in mediation.

Successful decision of a legal problem

Mediation and Arbitration: An Overview

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.

The fact is that many family law cases do not require entering a courtroom because many conflicts can be resolved through the processes of mediation and/or arbitration.

Procedural Differences

Mediation and arbitration are both strategies for conflict resolution that involve a specially-trained third party or parties. However, the processes by which conflict resolution is sought differs considerably.

Mediation seeks to resolve conflicts between parties through more conversational negotiations. During mediation, communication is facilitated by a neutral mediator who aims to uncover any miscommunications that may impede negotiations and help the parties work toward a mutually agreeable settlement. Mediation may be voluntary or court-ordered, but it is not legally binding. If no resolution is achieved or one party is not satisfied with the proposed resolution, parties still have the option to pursue the matter further through arbitration and/or litigation.

Arbitration bears more similarities to litigation proceedings than mediation. Conflict resolution is facilitated by a single neutral third party or by a panel of neutral parties. Arbiters are usually experts in the area of legal practice—family lawyers, former judges, etc. may be arbiters in divorce and/or custody cases, for example. During arbitration, evidence is presented and testimony taken, much like a deposition or litigation hearing. Once both parties have presented their cases, the arbiter(s) renders a decision, which is usually legally binding. (Binding arbitration is much more common than non-binding arbitration, which gives parties the option to appeal the determination before a judge).

Relative Benefits

Mediation and arbitration are both options that can allow parties who have reached an impasse to resolve their conflicts before going to court. By not going to court, parties may save thousands of dollars in legal fees and, when children are involved, may mitigate the emotional toll of the divorce and custody battle experienced by the kids.

When emotions run high and parties are embittered toward one another, arbitration may be preferable to mediation precisely because conflict resolution depends less on hostile parties effectively communicating with one another; rather, they present their cases and have discussions with an impartial party or panel.

Because arbitration is legally binding, there is no need for a final orders hearing. If mediation fails to produce a mutually agreed upon resolution, on the other hand, parties may proceed to a contested final orders hearing, but during that hearing, there is no opportunity for back-and-forth discussion with the judge making the determination. A judge simply hands down a legally-binding determination that may be less favorable to both parties.

If you are seeking a divorce and/or pursuing child custody in Colorado Springs, it is important to get a family law attorney who is familiar with all options for conflict resolution and one who is committed to the best interests of his clients. When you hire a well-qualified and highly experienced Divorce and Family Law Attorney, the lawyer should also know which Mediators/Arbiters have a proven record of settlement negotiations.  This is another reason for hiring the very best lawyer you can find.

Gordon N. Shayne has extensive experience in Colorado family law, and his goal is to always help his clients most efficiently reach a favorable determination, which often involves arbitration. Mr. Shayne advocates for conflict resolution that spares his clients unnecessary expense and spares children and parents unnecessary stress.

For expert family law counsel, contact the Law Office of Gordon N. Shayne.

Disclaimer: The blogs posted on ShayneLaw.com are offered for informational purposes only. These blogs are not a solicitation for legal business and should not be construed as providing any legal advice or legal opinions as to any specific fact or circumstance. Specific legal issues, concerns and conditions always require the advice of an appropriate legal professional. To obtain legal advice or opinions about Colorado family law, personally consult with a licensed Colorado attorney.