Alternate Dispute Resolution in Your Family Law Case

By: Janette Jordan

In the State of Colorado, when you have a pending family law case before the court, such as a divorce filing, allocation of parental responsibilities filing, post-decree modifications, etc., courts typically require that the parties attempt alternative dispute resolution (ADR). In fact, C.R.S. 13-22-301, et seq. states that courts can require the parties of a contested issue or dispute to engage in some form of alternate dispute resolution. The mediation is the most common form of alternate dispute resolution utilized by family law litigants, there are methods by which parties may elect to resolve their issues.

1. Mediation

Mediation is a process in which a neutral third party (the mediator) meets with the parties and facilitates an attempt to resolve disputes and reach a settlement. The process is confidential and resolution is not mandatory. This means that you cannot disclose to the court what was discussed, proposed, or rejected during the mediation process. Furthermore, as parties are not obligated to reach a settlement agreement, you can reach a full agreement, a partial agreement, or no agreement at all. If any agreement is reached, it is highly recommended that you get it reduced to writing and signed, as verbal confirmation in mediation is not going to constitute a binding agreement that the court can then subsequently enforce.

Mediation can conducted by either a private mediator or one obtained through the Office of Dispute Resolution (ODR). Effective January 2, 2018, the Office of the Chief Justice recently ordered an increase to the ODR fee schedule. For domestic relations cases, the cost is now $150.00 per hour; $75.00 per party per hour. A minimum of two (2) hours is required. If a party is unable to afford their portion of the mediation, they may request a waived fee under C.R.S. 13-22-305(3). You will be paired with a designated mediator based upon any requests and their availability.

Private mediators are also available to provide dispute resolution services that satisfy the ADR requirement and can typically range in price between $150-$350 per hour. You should speak with your attorney about whether they believe a private mediator may be better suited to your case needs. Most private mediators are practicing attorneys, retired attorneys, retired magistrates or judges, or have specific specialties and knowledge related to a particular area of study. For example, if you have a case with complicated financial assets, property division, or high conflict parties, a private mediator may be able to offer you more guidance and insight based upon their experiences. If the parties are unable to reach an agreement regarding selecting a private mediator, ODR is the court mandated default. As with ODR, the process is confidential and reaching an agreement is not required.

2. Early Neutral Assessment

Early Neutral Assessment (ENA) is a specialized service made available to parties with contested issues regarding minor children only. Check to see if this service is being offered in your judicial district. The cost per session is $400 and the parties must complete a minimum of four (4) hours. You will be assigned to a team that is compromised of one male and one female and of those two, one will be an attorney and the other will be a mental health professional. Their goal is to work with the parties to help reach a comprehensive parenting plan that is truly customized to your child’s needs. This process is also confidential, the same as the other dispute resolution options. As with mediation, the parties reaching an agreement is not required. Likewise, parties are not required to engage in ENA and, thus, ENA will only occur by mutual agreement.

3. Arbitration

Arbitration is another option for reaching a resolution, but operates very differently from the other resolution options. In this scenario, you and the other party are agreeing to give an appointed third party the authority to hear your positions and issue an enforceable order. Arbitration is not common and is generally not going to be viewed as an alternative to mediation for satisfying the ADR requirement. A later blog post will delve further into the pros and cons of arbitration and what it entails. As with ENA, arbitration can only be entered into by mutual agreement and cannot be ordered by the court. In essence, arbitration entails basically handing over decision making authority to a private judge. Though arbitration will generally entail courts like procedures and outcomes, the parties have the ability to dictate the scope and the rules, which is something they would not have if actually going to a hearing before the court.

The courts have started a progressive shift toward giving parties opportunities to resolve their issues before litigating them at trial. Studies show that parties are more likely to minimize conflict in the future when they participate in their own settlement agreements than when an order is simply issued by the court. The path your case takes towards resolution is up to you and the other party. Before going down the road to full blown litigation, you at least owe it to yourself to investigate other options.