What Is Mediation and Do I Have To Go To Mediation?
In most family law cases, the court orders mediation where the parties have to try to resolve their differences with a neutral third party, the mediator. In the event that you are able to resolve your differences (and there is a signed settlement agreement) prior to the mediation date, you do not have to go to mediation.
If you and the other party still have unresolved issues at the time of the mediation, the mediator can offer different perspectives and thoughts in order to help the parties resolve their differences. The mediator is trained to make each party feel heard and help the parties come up with resolutions so that the parties can avoid going to Court. The mediator does not make judgments about who is right or wrong.
Mediation and arbitration are sometimes confused. A mediator cannot make decisions for you, they can only help you make decisions in order to settle your dispute. On the other hand, an arbitrator can make binding decisions in your case.
When you get to mediation, the mediator will allow you to tell your side of the story, and he or she will try to get both parties to come to an agreement that is fair based on your family’s circumstances. All communications that occur in mediation are confidential and are not allowed to be brought into court as evidence. This way, when you are in mediation, you can be candid with the mediator and the opposing party and know that what you say is not going to be used against you. There are some limitations on this general rule about confidentiality, so check with your lawyer before mediation for more details.
If you have to go to court, the judge has to apply the guidelines outlined in Colorado law more strictly than what you can agree on in mediation. In contrast, at mediation, there are oftentimes more creative solutions that work better for the parties. You can also include many more details in your settlement than what may be ordered by a judge. The settlement will be approved as a court order once the judge reviews it an finds it fair.
You can use the time spent in mediation wisely and make sure that all of the small details are included in the written settlement document. If there is no agreement and a judge decides your disputed issues for you, oftentimes, there will be small details omitted making the order harder to enforce.
A mediation settlement agreement is often more comfortable for both parties because you have the opportunity to choose the settlement terms. You can give up certain things that are less important to you in exchange for terms that are more important to you. in Court. When parties go to court, oftentimes they both feel that they “lost” because you usually don’t get orders for exactly what you want when you go to Court. Since both parents know what is most important to them, usually mediation can help them come up with a workable solution that they both can live with.
To schedule mediation, you can go through the Office of Dispute Resolution for mediation which is approximately $120.00 per hour, or you can hire a private mediator to mediate, which is usually in the range of $200.00 – $250.00 per hour. Usually, you get what you pay for when you hire a mediator. However, there are some very effective Office of Dispute Resolution mediators. Talk to your lawyer about the best Office of Dispute Resolution mediators before scheduling your mediation with the Office of Dispute Resolution.
You can go to mediation by yourself or with your attorney. A mediator cannot provide you with legal advice, so it is a good idea to bring your attorney or at least have access to your attorney by telephone or Skype. The benefit in having your attorney with you in person is that your attorney can draft any agreements and you and the other party can sign the agreements at that time. If there is an agreement at mediation and the agreement is not drafted and signed at that time, there is a risk that the other party will change his or her mind about was agreed upon.
If you are uncomfortable with being with the other party in person, the mediation can occur in two separate rooms and the mediator can shuttle back and forth between you and the other party. If you bring your lawyer with you to the mediation, you and your lawyer will be together in one room and the other party will be in another room. In that case, you will have time to strategize with your lawyer and receive legal advice during the “downtime” when the mediator is not in the same room with you.
If mediation is required and you do not participate with the mediation process, the Court can “bump” your trial or punish the party who refused to cooperate. It is important to participate in mediation with an open mind about settlement because even when you believe your case won’t settle, sometimes the mediator can help the parties get the case resolved.
If you have any questions regarding mediation, please contact Gregg Greenstein.