Frequently Asked Colorado Mediation Questions Part 1
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- What is family law mediation?
Family law mediation is a confidential process in which each of the parties to a divorce or custody case meets with a neutral individual (mediator) in an attempt to resolve their disagreements. This can be done with both of the parties and the mediator in one room, or through a process called shuttle mediation in which the parties sit in separate rooms, with the mediator traveling back and forth between the rooms. The sole goal of the mediator, and the mediation process, is to get the parties to resolve the contested issues amicably and without need for a court hearing.
During the mediation process, the mediator will continue to work with parties until such time that an agreement, generally called a “memorandum of understanding,” can be drafted, or until the parties determine that an agreement will not be reached. Though there is no requirement that the parties reach an agreement at mediation, there is often a court ordered requirement to mediate the contested issues at least one time. The mediator will also generally be asked to provide a statement to the court indicating that the parties have mediated and whether an agreement is reached. Mediation can be an effective tool for getting a divorce or custody case settled.
- Does the mediator make decisions in my case?
No. In mediation, whether related to a divorce or custody case, or any other type of legal matter, the mediator serves as a neutral, third person who essentially attempts to facilitate agreements between the parties. The mediator has no power and makes no decisions. People often presume that they need to persuade or impress the mediator, such as they might do with a judge in a court hearing. This is not the case with mediation. In light of the fact that the mediator has no authority, parties are able to engage in free-flowing discussion of the issues, without fear of reprisal or negative outcome. Additionally, the mediation process is confidential. A mediator cannot be called to testify in court and his or her notes can never be subpoenaed for court. As such, the parties’ primary concern can be resolution, nothing more.
- Is there a difference between mediation and arbitration?
Yes. When parties to a Denver divorce case attend mediation, the only requirement is to participate in the process in a good faith manner. This means that you should cooperate in scheduling the mediation session and, once there, you should participate to the best of your ability. This does not mean that you must compromise on all of your positions, but rather, that you should be open to discussing them, as well as the other party’s positions. The end result of mediation is voluntary, meaning the parties can choose to agree or disagree. If you do not reach an agreement, then you may proceed to continuing with the court process.
When you attend arbitration, which can be compared to meeting with a private judge, you are giving the arbitrator the authority to decide and rule on the issues in your case, just like a judge. Arbitration is a completely voluntary process in that the court would not order that you meet with an arbitrator without an express agreement of the parties to do so. The arbitrator will hear your individual positions, hear testimony, review documentation, and make a decision on the issue presented to them. Arbitration is not common and is something our attorneys generally discourage, due to a limited lack of reviewability as compared to a ruling handed down by the court, which is more appealable.
- Do courts require mediation?
Yes and no. The Denver metropolitan area is made up of seven counties, including Denver, Arapahoe, Douglas, Jefferson, Adams, Broomfield, and Boulder. Mediation is not required by statute. However, most of the metro area counties require mediation. A custody or divorce case in Douglas County, or Arapahoe, will always come with an order to attend mediation. If the matter is pre-decree, meaning before your final hearing, you may be required to mediate two times. Boulder County will generally require mediation. Adams and Broomfield Counties do not generally require mediation. In Denver, whether you are required to mediate will vary from judge to judge. Like Denver, Jefferson County also depends on which judge hears your case.
Mediation can be required not only with the initial phase of the case, but also subsequent rounds of litigation, such as a modification of child support or visitation. Generally, parties will be informed as to whether they must mediate via some form of case management order issued by the court. It is also not uncommon for final agreements to contain provisions requiring mediation before coming back to court on new issues. Parties should make sure they read all orders from the court carefully, as well as their prior agreements. Failure to follow an order to mediate can potentially lead to a delay in proceedings or dismissal or your case or motion.