Overview

People getting divorced often think they have only two options: an amicable “mediated” divorce or a hotly contested litigation battle. In reality, all courts in Colorado require every party to a divorce, legal separation, or other family law case to attend mediation at least once after a case is filed and before the hearing takes place. Very few cases are exempt from this requirement. As a result, parties in both the easiest and the hardest cases are required to mediate unless they can reach a full settlement before the scheduled mediation takes place.

How Does It Work?

Mediators act as neutrals in the case. They do not represent you or the other party. While they are there to help you reach an agreement, they cannot make decisions for you or enter orders in your case. While the neutral mediator will not make decisions for the parties, he or she will work with the parties to assist them in resolving their disputes by a voluntary agreement. The mediator facilitates communications, promotes understanding, focuses the parties on their interests, and assists with problem solving to allow the parties to reach their own agreement. Some mediators will also discuss with the parties their thoughts on how the parties’ positions may be viewed by the Court – this input is often essential in helping parties evaluate their risks and the likelihood of success of a course of action.

Mediation is a confidential process. The mediator cannot ever be called to testify regarding what happened in mediation. You and your spouse cannot use anything proposed in mediation in court filings against the other. In most mediations, the two parties are in separate rooms (virtual or in person), with the mediator switching between each room. If things are going well, all parties and attorneys may be brought together, or the mediator may wish to speak with the attorneys without clients present. Mediation is voluntary and can end at any time if one party wishes to leave.

Benefits of Mediation

One of the benefits of mediation is that it is the only way to ensure that you have complete control over the outcome of your case. Agreements you make in mediation are based on your own decision-making, with your knowledge of your family circumstances and what is best for you and for your children. While the axiom is true — that a good settlement in mediation should leave everyone feeling like they didn’t get everything they wanted – it is also the best way to get as much of what you want as you can. Once your case goes in front of a judge, it will be in the hands of someone who knows nothing about you, and who has spent little, if any, time preparing for your case.  Judicial outcomes are unpredictable. You may spend a great deal of money to go to court and lose.

A second benefit of mediation is that, unless mediation is set very late in the process after all litigation preparation has been completed, settling in mediation is markedly less expensive than going to a contested hearing. Finally, if you and your spouse are unable to come to an agreement in mediation, most parties leave mediation with a solid sense of their own case, what the other side will be requesting at the hearing, and the legal basis the other side thinks supports their position.

Mediation Timing

Many people wish to engage in mediation early in the divorce process. Some even try to resolve their case in mediation entirely before any court documents are filed. While some may be appropriate for this type of early resolution, it is not advisable to mediate or settle a case without having all the information you need to know you are making a fair settlement. This requires the exchange of income documentation, most recent bank statements, credit card statements, investment and retirement account statements, real property documentation, insurance documentation, employee benefit documentation, value and title information regarding real property, vehicles and businesses, last three years of business and personal tax returns, and three years of business financial statements, at a minimum). In addition, real estate appraisals, business valuations and other opinions of value may also be helpful before attending mediation. Attempting to settle a case without having all the information necessary to make an informed decision is unlikely to end with a fair settlement.

How Can We Help?

As mediators: The attorneys at Wells Family Law are trained mediators. We can assist parties who are represented by counsel, either in person or remotely, mediating the issues in their family law cases. We work hard to honor the desire of any couple to minimize the harm and emotional damage that can arise in protracted litigation, because we believe that no professional should disrupt an already difficult situation. Since we also litigate cases, we are able to provide a unique perspective as mediators, drawing on years of seeing successful strategies and actions play out in various courtrooms. Understanding that litigation should be the last resort of any divorce case, we work to educate mediation parties regarding the consequences of failing to settle.

As part of a full-service family law representation: The attorneys at Wells Family Law assist our clients in preparing for a successful mediation. This entails gathering and disclosing all of the required financial disclosures, preparing mediation positions that represent our client’s views on settlement, counseling our clients on the likely outcomes of such positions in court versus in settlement discussions, preparing draft documents to be used as settlement documents, and attending mediation with our clients.

As part of a limited-scope representation: In certain cases, we are also able to assist our clients on a consulting basis only, attending mediation or being available for a call during the mediation session.

As part of a Collaborative Divorce process: We are committed to respecting the process desired by parties. We settle many cases prior to the filing of any case, using the Collaborative Divorce approach set forth in the Colorado Uniform Collaborative Law Act. We are happy to discuss what process might be the best fit for your unique situation. Whatever your process is, it is your process.

The attorneys at Wells Family Law are compassionate and well-versed in alternatives to litigation and strive to protect the dignity of every client to resolve their case in a way that meets their short-term and long-term needs and goals. The attorneys at Wells Family Law are experienced in mediation, collaboration and litigation, because we believe that a respectful process and amicable settlement is appropriate for families. Ask the attorneys at Wells Family Law what solutions may work best for your family.