Mediation and Alternative Dispute Resolution
People who need to get 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 or other family law case, even the most combative ones, to attend mediation at least once after a case is filed. Very few cases are exempt from this requirement.
Many people, however, wish to engage in mediation early in the divorce process, or even to resolve their case in mediation entirely before any court documents are filed. Some cases are appropriate for this type of early resolution, and the involvement of the right attorneys can help like-minded people reach out-of-court resolutions with their knowledge of the law and how to appropriately draft divorce or other family law agreements. Whether drafted as part of mediation or during a traditional litigation process, all substantive agreements signed by parties become official orders of the court when a Decree dissolving a marriage or other final orders are entered.
Just because a case has already been filed with the court does not mean the time for an amicable resolution has passed – in fact, many cases will involve more than one mediation after the case is filed, if both parties agree they would like to continue working on their issues with the assistance of a qualified mediator and other divorce professionals, including settlement-minded lawyers. It is also not uncommon for parties to settle many or most of their issues in mediation, requiring court involvement for only one or two discrete issues, if at all.
Even when parties are financially unable to afford full representation or traditional legal services, they can still be well-served by consulting with attorneys on the side (an “unbundled,” ‘limited-scope” or “discrete-task” representation arrangement), having attorneys attend or be available for a call during their mediation or first running a contemplated settlement agreement by an attorney skilled in drafting such agreements prior to signing. These sorts of arrangements require that both parties complete their required financial disclosures in advance of settlement, but can still be extremely cost effective.
People are empowered when they have some control not just over the results, but the procedure as well. Divorce is a complicated process and it often feels slow and protracted for those with little familiarity with the legal system. Choosing a timeline of when to file, whether to attempt to resolve all the issues before filing, attending one or more mediations or settlement conferences, are all largely within the control of the parties, not attorneys or judges. Making the right decisions regarding how to proceed can affect not only the outcome but the relationship with an ex or children for decades to come.
In mediation, 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.
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.
As mediators: Among the trained mediators at Wells Family Law, Zac Roeling, in particular, focuses a substantial portion of his practice on mediation. Zac can assist parties who are represented by counsel or who are unrepresented, either in person or remotely, mediating the issues in their family law cases. Zac works hard to honor the desire of any couple to minimize the harm and emotional damage that can arise in protracted litigation, believing that no professional should disrupt a difficult situation any more than necessary. Since he also litigates cases, Zac is able to provide a unique perspective as a mediator, drawing on years of seeing successful – and unsuccessful – strategies and actions play out in various courtrooms. Understanding that litigation should be the last resort of any divorce case, Zac works 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 with opposing attorneys prior to the filing of any case, either using the full Collaborative Divorce approach or a “quasi-collaborative” approach to the case to conserve resources. We are happy to discuss what process might be the best fit for your unique situation.
Whatever your process it, 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.