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Parties to a divorce or child custody action are often referred by the Court to mediation in an attempt to resolve their disputes short of having a trial. Often times these referrals are mandatory and the parties must at least attempt to mediate their disputes before the Court will hear the case. Most jurisdictions in Colorado have this requirement, but the Court orders do not spell out or do a very good job of explaining what mediation actually is.
Mediation is a form of alternative dispute resolution. In other words it is a method of finding solutions to disputed issues other than asking a judge to make the final decision. Mediation is a non-binding method of dispute resolution, meaning that the parties will only resolve the contested issues if they can both come to an agreement about them. No one is going to make a decision for the parties or tell them what they must do. In mediation the parties (with or without lawyers) meet with a mediator and attempt to craft a solution to their problems that is acceptable to everyone involved. Everything that is said in a mediation is confidential, meaning that it can’t be used in a future proceeding against (or by) the party that said it. Mediators can’t be called to testify about what occurred in mediation, and, with a few exceptions, may not disclose to anyone what occurred in mediation.
The mediator is a neutral party, meaning that he or she will not take sides in the dispute, or offer legal advice. Mediators are trained in communication and dispute resolution methods that allow them to help the parties get to the heart of the disputed issues and to find ways to address everyone’s concerns. The mediator will help the parties communicate about the disputed issues, generate options for resolution, and ideally craft an agreement that both parties find acceptable.
Mediation is not an incredibly formal process. In the most common form of mediation when parties are unrepresented the parties meet in the same room with the mediator. Each party takes a turn laying out their concerns and identifying what they think needs to be resolved. With the assistance of the mediator the parties will work to find solutions that are based on meeting both parties’ interests. If the parties are in high conflict, or generally when the parties have attorneys, they meet separately with the mediator in what is called “shuttle mediation” where the mediator “shuttles” between each party.
One of the most valuable parts of mediation is that the decision-making process is entirely in the parties’ hands. This allows the parties a much greater role in crafting a resolution to their dispute than they would have in traditional litigation. That control in and of itself is worth quite a lot since the resolution will be something each party can live with, rather than having a judge tell them what they must and must not do. From a family law perspective there is also the added benefit of preserving, and possibly even strengthening, the relationship between the parties. Litigation is stressful and damaging to the relationship between the parties, and keeping that relationship in tact is amazingly important in reducing conflict further down the road, especially in cases of parenting issues since the parties will be required to continue to interact and co-parent.
If you have additional questions about mediation or are looking for someone to represent you in a mediation the attorneys at Burnham Law are here to help. Burnham Law also offer in-house mediation services with a former district judge. Please contact us today to discuss if this option is right for you.
Why Choose Mediation
Why should you choose mediation as a means to try and resolve a dispute, especially in the family law context? Mediation can be a powerful tool for giving the parties a say in the outcome of their case, and in preventing recurrent disputes.
Family law disputes are often emotionally difficult, especially when children are involved. The parties often have competing interests that are of far greater emotional value than they are monetary or tangible. Our judicial system is great at resolving disputes: once a case has worked its way through the system, the dispute is resolved. But our judicial system is not great at dealing with ongoing, continuous disputes, situations where the parties must continue to interact and possibly even work together. Take for example a simple personal injury case. If the case doesn’t settle, at the end of the trial, one party will “win” and the other party will “lose”. Either the defendant will be required to pay damages or he will not. The parties never have to see or speak to one another again and the dispute is over.
Now, compare that with a family law case where the parties have a young child together. The Court will enter orders at the end of the trial, often balancing the competing interests as best as it can. And now, the parties must abide by those orders, which are focused on some of the most important aspects of their lives, their children. In essence the judge has just told the parties how they are going to raise their children together. At this point, unlike the personal injury parties, these folks still have to deal with each other as they raise their children. They are still parents of the same kids, and have to interact, often frequently. Many times the conflict of going to trial and fighting over these issues has done real damage to the relationship. Damage that has to be repaired, or at least dealt with, in order for the parties to function as co-parents. Many times one of the parties (or both!) is unhappy with the judge’s ruling and the fact that they have handed control over such major decisions to a stranger. It’s no wonder that we often see conflict continue to occur even after the judge has issued a ruling.
This is an area where mediation really shines. Mediation allows the parties to address the underlying issues in their case, while maintaining a sense of control over what is going to happen. Unlike litigating a case, where each side will argue their position (“I want 50-50 parenting time”) the parties can identify their underlying concerns (“I want to be a part of my child’s life”) and work on crafting solutions that address those interests with the other party. Mediation gives parties ownership over the outcome of a case that they simply don’t have when they ask a judge to make the important decisions for them. In my experience as a litigator and a mediator, parties who have had more of a hand in the outcome of their case are usually more satisfied with the result, and seem less likely to have recurrent conflict. Mediation also provides the parties an opportunity to stop arguing their positions, and to actually listen to each other’s concerns and worries in a safe, facilitated environment.
Often times in litigation parties positions tend to get boiled down in to zero-sum negotiations where if one party “wins” the other party “loses”. Mediation lets us break out of such a rigid, linear frame of mind and instead to talk about ways in which both parties can “win”, or more appropriately, what each party can do to help address the other’s concerns. Often, just being able to talk about and explore the underlying issues of the conflict can make parties more comfortable with the outcome. Rather than fighting they can work together to come up with ideas that meet everyone’s needs. The parties know themselves and their children far better than any judge ever can, so they are much more likely to be able to come up with creative solutions to the problems they face. Moving away from win-lose scenarios also builds a solid foundation for the parties to begin working together as co-parents, even when they don’t have a mediator in the room to help them.
This is not to say that mediation is right for every case. Sometimes parties are too entrenched in their positions to be open to mediation, or there might be a power imbalance (such as in cases of emotional or physical abuse) where the parties simply cannot work together. In cases where the parties are in such an emotionally heightened state that they can’t be in the same room together, mediation still may help. In a situation such as that the parties might mediate without ever being in the same room. This can still let them start to build a cooperative foundation. Ultimately mediation requires both parties to be willing to listen to each other and to step away from positional negotiation and move towards interest based negotiation. If that is unlikely to happen, mediation probably isn’t a good fit.
In short, choose mediation if you think you and the opposing party can attempt to come to a resolution that meets both of your needs, and if you are interested in having more control over the outcome of your case than you would have by simply asking a judge to decide.